Citation Nr: 21041287 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 16-56 500 DATE: July 8, 2021 ORDER A disability rating in excess of 20 percent for degenerative joint disease (DJD) of the lumbar spine (lumbar spine disability) is denied. A disability rating in excess of 20 percent for impairment of the sciatic nerve due to radiculopathy/peripheral neuropathy of the left lower extremity (LLE) prior to July 8, 2020, and in excess of 40 percent from July 8, 2020 is denied. FINDINGS OF FACT 1. For the entire rating period on appeal, the Veteran's lumbar spine disability has not been productive of forward flexion of the thoracolumbar spine to 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, unfavorable ankylosis of the entire thoracolumbar spine, incapacitating episodes as a result of intervertebral disc syndrome, or the functional equivalent thereof. 2. Prior to July 8, 2020, the Veteran's service-connected impairment of the sciatic nerve due to radiculopathy/peripheral neuropathy of the LLE was not productive of moderately severe incomplete paralysis. 3. From July 8, 2020, the Veteran's service-connected impairment of the sciatic nerve due to radiculopathy/peripheral neuropathy of the LLE has not been productive of severe incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for an award of a disability rating in excess of 20 percent for the service-connected lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 5.49, 4.71a, Diagnostic Code 5242. 2. Prior to July 8, 2020, the criteria for an award of a disability in excess of 20 percent for impairment of the sciatic nerve due to radiculopathy/peripheral neuropathy of the LLE have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.124a, Diagnostic Code 8520. 3. From July 8, 2020, the criteria for an award of a disability rating in excess of 40 percent for impairment of the sciatic nerve due to radiculopathy/peripheral neuropathy of the LLE have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from July 1983 to April 1984. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2020, the Board remanded the issues currently on appeal to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ confirmed and continued the prior denials and returned the case to the Board. See August 2020 supplemental statement of the case. The issues of entitlement to service connection peripheral neuropathy of the right lower extremity and service connection for gastroesophageal reflux disease and hiatal hernia were also remanded by the Board in May 2020. However, an August 2020 rating decision granted service connection for impairment of the sciatic nerve due to radiculopathy/peripheral neuropathy of the right lower extremity, as well as service connection for gastroesophageal reflux disease and hiatal hernia. That decision constitutes a full grant of the benefits sought on appeal with respect to those issues. There is no indication from the record that the Veteran has disagreed with the ratings or effective dates assigned in the August 2020 decision. Accordingly, the issues of service connection peripheral neuropathy of the right lower extremity and service connection for gastroesophageal reflux disease and hiatal hernia are no longer in appellate status before the Board. In an August 2020 rating decision, the Veteran's rating for impairment of the sciatic nerve of the LLE was increased to 20 percent, effective May 28, 2014. A May 2021 rating decision found clear and unmistakable error in the August 2020 rating decision that granted a 20 percent rating effective May 28, 2014 for impairment of the sciatic nerve of the LLE. The May 2021 rating decision then granted an earlier effective date of January 22, 2013 for the 20 percent rating for impairment of the sciatic nerve of the LLE and assigned a 40 percent rating from July 8, 2020. Accordingly, the Board will now consider whether higher disability ratings in excess of 20 percent prior to July 8, 2020, and in excess of 40 percent from July 2020 are warranted for impairment of the sciatic nerve of the LLE. Higher Ratings Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If there is a question as to which of two evaluations shall be applied, the higher evaluation 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. If different disability ratings are warranted for different periods of time over the life of a claim, "staged" ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). 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. 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); Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). With any form of arthritis, painful motion is an important factor of disability; the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. The intent of the schedule is to recognize painful motion with joint or particular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. 1. Higher Rating Lumbar Spine Disability The Veteran seeks a disability rating in excess of 20 percent for his service-connected lumbar spine disability. He asserts that he is entitled to a higher rating for lumbar spine disability because the severity of his symptoms is worse than contemplated by the currently assigned rating. Throughout the appellate period, the Veteran's lumbar spine disability has been evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. Disabilities of the spine are to be evaluated under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. Intervertebral disc syndrome (IVDS) will be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (outlined below), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242, 5243. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment are to be evaluated separately under the appropriate diagnostic code(s). Id. at Note (1). Under the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the 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 rating is warranted for forward flexion of the thoracolumbar spine 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 rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, normal extension is zero to 30 degrees, normal left and right lateral flexion is zero to 30 degrees, and normal left and right lateral rotation is zero to 30 degrees. Id. at Note (2). All measured ranges of motion are to be rounded to the nearest five degrees. Id. at Note (4). During the pendency of the appeal, VA issued a final rule revising the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a. 85 Fed. Reg. 76,453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). The final rule went into effect February 7, 2021. The Board notes that the new rating criteria did not make amendments to DC 5242. At a November 2015 VA examination, the Veteran reported chronic low back pain that was getting worse as he aged. He reported that he woke up every morning with a stiff back and sometimes experiences back spasms and pain at night. The Veteran denied flare-ups. Upon physical examination, thoracolumbar spine range of motion (ROM) measurements were as follows: flexion to 50 degrees, extension to 20 degrees, right and left lateral flexion to 20 degrees each, and right and left lateral rotation to 15 degrees each. There was pain on the end range of all excursions of motion, but it did not result in functional loss. There was no evidence of pain with weight bearing and no objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the lumbar spine. The Veteran was able to perform repetitive use testing with at least three repetitions and there was no additional loss of function or range of motion after three repetitions. There was no guarding or muscle spasm of the lumbar spine. Muscle strength testing was normal. There was no ankylosis of the spine. The Veteran did not have intervertebral disc syndrome (IVDS) of the lumbar spine. The Veteran occasionally used a wheelchair and regularly used a cane as a normal mode of locomotion. At a July 2020 VA examination, the Veteran reported constant throbbing and increased pain. He described the pain as stabbing electric shock that rates a 6/7 on a 1-10 pain scale. The Veteran stated that loss and impairment of the lumbar spine manifested in an inability to do daily chores, wash dishes, use the bathroom, walk, drive a car, or do anything that required use of the lumbar spine. Upon physical examination, thoracolumbar spine ROM measurements were as follows: flexion to 40 degrees, extension to 15 degrees, right and left lateral flexion to 15 degrees each, and right and left lateral rotation to 15 degrees each. There was pain on the end range of all excursions of motion, but it did not result in functional loss. There was evidence of pain with weight bearing, but no objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the lumbar spine. The Veteran was able to perform repetitive use testing with at least three repetitions and there was additional loss of function or range of motion after three repetitions. After repetitive use testing, thoracolumbar spine ROM measurements were as follows: flexion to 35 degrees, extension to 10 degrees, right and left lateral flexion to 10 degrees each, right lateral rotation to 15 degrees, and left lateral rotation to 10 degrees. The examiner estimated that the Veteran would have the same limitation of motion with repeated use over time. There was no additional functional limitation with flare-ups. The Veteran had muscle spasms of the lumbar spine that resulted in abnormal gait or abnormal contour. The July 2020 VA examiner identified additional factors contributing to disability due to less movement than normal, weakened movement, disturbance of locomotion, and interference with sitting and standing. Muscle strength testing was normal except for active movement against some resistance with bilateral knee extension, bilateral ankle plantar flexion, bilateral ankle dorsiflexion, and bilateral great toe extension. The Veteran did not have muscle atrophy. Deep tendon reflexes at the knee and ankle were 1+ and hypoactive. Sensory examination was normal except for decreased sensation in the bilateral lower leg/ankle and bilateral foot/toes. The Veteran was unable to perform straight leg testing. The Veteran had severe intermittent pain, and moderate paresthesias and/or dysesthesias in both lower extremities. He also had moderate numbness in his right lower extremity (RLE) and mild numbness in his LLE. There was no ankylosis of the lumbar spine. The Veteran did not have IVDS of the lumbar spine. He regularly used a cane, walker, and scooter as a normal mode of locomotion. A December 2020 VA examination report showed similar complaints and impairment pertaining to the lumbar spine. A review of the record shows that the Veteran receives treatment for various disabilities at the VA Medical Center and private medical providers, to include his back disability. A review of the treatment records does not show that the Veteran has symptoms of his back disability that are worse than those reported in the various VA examination reports of record, to include limitation of motion or functional impairment during flare-ups or following repeated use over time. In light of the foregoing, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 20 percent for the Veteran's lumbar spine disability throughout the appellate period. In this regard, there is no indication from the record that the Veteran had flexion of the thoracolumbar limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. See 38 C.F.R. § 4.71a, Diagnostic Code 5242. In fact, the Veteran was noted to have flexion limited to, at worst, 35 degrees, to include as due to pain, fatigability, weakness, lack of endurance, or incoordination, following repeated use over a period of time or during a flare-up. There was otherwise no indication of IVDS, ankylosis, or the functional equivalent thereof. Based on the foregoing, the Board finds that a disability rating in excess of 20 percent for the lumbar spine disability is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against a higher rating, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. The appeal of this issue is denied. 2. Higher Rating Impairment of the Sciatic Nerve of the LLE The Veteran seeks to establish higher ratings for service-connected impairment of the sciatic nerve due to radiculopathy/peripheral neuropathy of the LLE. He asserts that his symptoms are worse than those contemplated by the currently assigned ratings. The Veteran is in receipt of a 20 percent rating for impairment of the sciatic nerve of the left lower extremity for the period prior to July 8, 2020, as well as a 40 percent rating for the period from July 7, 2020 under 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under that Diagnostic Code, moderate incomplete paralysis warrants a 20 percent rating; moderately severe incomplete paralysis warrants a 40 percent rating; and severe incomplete paralysis of the sciatic nerve with marked muscular atrophy warrants a 60 percent rating. With complete paralysis of the sciatic nerve, which warrants an 80 percent rating, the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. A note preceding the Schedule of Ratings for Diseases of the Peripheral Nerves provides 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. The note further states that when the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. 38 C.F.R. § 4.123. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in 38 C.F.R. § 4.123 will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. Id. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate, incomplete paralysis. 38 C.F.R. § 4.124. The Board notes that words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Rather, all evidence must be evaluated in arriving at a decision regarding the assignment of a disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. At a November 2013 VA examination, the Veteran reported that he felt better when he stayed off his feet. He reported that his pain was exacerbated by his first steps out of bed in the morning. The Veteran described the pain as shooting in both feet only, not his legs. The pains occurred approximately twenty times a day and lasted for seconds. He noted that any pressure on his toes, even sheets, causes pain in his feet. The Veteran reported that he has never had his left foot injected. Upon physical examination, the Veteran was found to not have any symptoms attributable to any peripheral nerve conditions. Muscle strength testing was normal. Deep tendon reflexes for the knee and ankle were 1+ and hypoactive. Sensory examination was normal. The Veteran did not have any trophic changes that were attributable to peripheral neuropathy. His gait was noted as normal. At a July 2020 VA examination, the Veteran reported bilateral intermittent electrical shock pain on the lateral aspects of the thigh and calves with numbness in the toes, and groin pain in the left groin. The Veteran was found to have severe intermittent pain in the LLE and RLE, moderate paresthesias and/or dysesthesias in the LLE and RLE, moderate numbness in the RLE, and mild numbness in the LLE, all attributable to any peripheral nerve conditions. Muscle strength testing was normal except for active movement against some resistance with bilateral knee extension, bilateral ankle plantar flexion, and bilateral ankle dorsiflexion. The Veteran did not have muscle atrophy. Deep tendon reflexes for the knee and ankle were 1+ and hypoactive. Sensory examination was normal except for decreased sensation in the bilateral lower leg/ankle and bilateral foot/toes. The Veteran did not have any trophic changes that were attributable to peripheral neuropathy. The Veteran had a limping gait with pain. The examiner assessed that the Veteran's disability was akin to moderate incomplete paralysis of the left sciatic nerve. See also December 2020 VA peripheral nerves examination report. A review of the record shows that the Veteran receives treatment for various disabilities at the VA Medical Center and private medical providers, to include his leg disability. A review of the treatment records does not show that the Veteran has symptoms of his leg disability that are worse than those reported in the various VA examination reports of record. Based on the foregoing, the Board finds that the Veteran's disability picture more closely approximates the criteria for a 20 percent rating prior to July 8, 2020, and a 40 percent rating from July 8, 2020. 38 C.F.R. § 4.124a, Diagnostic Code 8520. In this regard, the preponderance of the evidence is against a finding that the impairment of the sciatic nerve of the LLE was akin to moderately severe incomplete paralysis for the period prior to July 8, 2020. The Board's determination is based in part on the fact that the Veteran's reports of symptoms for the period prior to July 8, 2020, were largely complaints of pain in the LLE. Moreover, the November 2013 VA examiner noted that the Veteran did not have impairment of the sciatic nerve at that time. The preponderance of the evidence is also against a finding that that the impairment of the sciatic nerve of the LLE was akin to severe incomplete paralysis for the period prior to July 8, 2020. In this regard, while the July 2020 and December 2020 VA examiners assessed that the Veteran's impairment was akin to moderate incomplete paralysis of the sciatic nerve of the LLE, the AOJ resolved reasonable doubt in the Veteran's favor by awarding a 40 percent rating (based moderately severe incomplete paralysis of the sciatic nerve) in light of the VA examiners' findings of reduced muscle strength, reduced deep tendon reflexes, and decreased sensation. See May 2021 rating decision. The July 2020 and December 2020 VA examiners also noted that the Veteran had complaints of severe intermittent pain, moderate paresthesias and/or dysesthesias, and mild numbness in the LLE. This evidence does not tend to show that the Veteran's disability has been productive of severe incomplete paralysis of the lower extremity during this period. Moreover, the overall functional impairment resulting from the Veteran's service-connected impairment of the sciatic nerve of the LLE was no more than moderate in severity until July 8, 2020, and no more than moderately severe thereafter. Accordingly, the Board finds that the preponderance of the evidence is against the claim and a rating in excess of 20 percent for impairment of the sciatic nerve of the LLE for the period prior to July 8, 2020, and in excess of 40 percent from July 8, 2020 is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against a higher rating, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. The appeal of this issue is denied. J. Ragheb Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board I. Umez-Eronini, 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.