Citation Nr: 21042203 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 17-05 372 DATE: July 12, 2021 ORDER Entitlement to a rating of 20 percent, but no higher, for a lumbar spine disability is granted. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the left lower extremity is denied. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the right lower extremity is denied. FINDINGS OF FACT 1. The Veteran's lumbar spine disability results in flexion limited to 40 degrees. 2. The Veteran's radiculopathy of the left lower extremity is characterized by mild incomplete paralysis of the sciatic nerve. 3. The Veteran's radiculopathy of the right lower extremity is characterized by mild incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. For the entire period on appeal, the criteria for a rating of 20 percent, but no higher for a lumbar spine disability have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.59, 4.71a, Diagnostic Code 5237. 2. The criteria for an initial rating in excess of 10 percent for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.124a, Diagnostic Code 8520. 3. The criteria for an initial rating in excess of 10 percent for right lower extremity radiculopathy 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 served on active duty from January 2002 to June 2002, from February 2004 to August 2004, and from May 2005 to January 2006. On a July 2013 rating decision, the RO increased the Veteran's lumbar spine disability rating to 10 percent, effective September 20, 2011, the date VA received the increased rating claim. In a subsequent July 2017 rating decision, the RO granted separate 10 percent disability ratings for right and left lumbar radiculopathy, effective from February 7, 2017. In November 2019, the Board previously remanded this matter to the RO for additional development and consideration. The requested actions have been completed and the appeal is once again before the Board. Increased Rating Disability ratings are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155 (West 2012). Percentage ratings are determined by comparing the manifestations of a particular disability with the requirements contained in VA's Schedule for Rating Disabilities. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from a disease or injury and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, 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. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 3.102, 4.3. In deciding this appeal, the Board has considered whether separate ratings for different periods of time are warranted, a practice of assigning ratings referred to as staging ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). Disabilities 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. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). A United States Court of Appeals for Veterans Claims (Court) decision addressed what constitutes an adequate explanation for an examiner's inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. Id. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. 1. Lumbar spine disability The Veteran is seeking a rating in excess of 10 percent for a lumbar spine disability prior to July 23, 2020, and a rating in excess of 20 percent since pursuant to DC 5237. DC 5237 directs VA to rate the Veteran under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. 38 C.F.R. § 4.71a, DCs 5237-5243 (2020). Under 38 C.F.R. § 4.71a, DCs 5235 to 5243, spine disorders are to be rated under the General Rating Formula for Diseases and Injuries of the Spine on the basis of limitation of motion. Under these diagnostic codes, a 10 percent rating is assigned when rating forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, 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 assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when 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 assigned when forward flexion of the thoracolumbar spine is 30 degrees or less, or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned when there is unfavorable ankylosis of the thoracolumbar spine only. Finally, a 100 percent rating is assigned when there is unfavorable ankylosis of the entire spine. As described above, the higher rating for 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71, Diagnostic Code 5242. The Court, citing Dorland's Illustrated Medical Dictionary (28th ed. 1994), has recognized that ankylosis is defined as "immobility and consolidation of a joint due to disease, injury or surgical procedure," for VA compensation purposes. See Colayong v. West, 12 Vet. App. 524, 528 (1999). The General Rating Formula for Diseases and Injuries of the Spine, provides further guidance in rating diseases or injuries of the spine. In pertinent part, Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. See also Plate V, 38 C.F.R. § 4.71a. Effective February 7, 2021, VA's Schedule, 38 C.F.R. Part 4, was amended with regard to rating musculoskeletal disorders. Fed. Reg. 76453 (November 30, 2020) (codified at 38 C.F.R. § 4.71a). When a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. VAOPGCPREC 3-2000; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The revised musculoskeletal regulations do not provide for retroactive application; thus, the amendments may be applied as of, but not prior to, February 7, 2021. Hence, VA has made clear that its intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. For applications filed on or after the effective date, only the new criteria will be applied. As the Veteran's claim was pending prior to February 7, 2021, the Board will consider entitlement under the prior regulations as well as the updated regulations from February 7, 2021 forward, applying the most favorable criteria for the Veteran. The changes effective February 7, 2021 under 38 C.F.R. § 4.71a, DC 5242 and 5243 were not to the rating schedule itself but added instruction to classify disabilities associated with IVDS under DC 5243 and all other intervertebral disc disabilities under 5242. As such, DC 5242 now reflects "Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either DC 5003 or 5010);" DC 5243 now reflects "Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve route; assign diagnostic code 5242 for all other disc diagnoses." As such, the changes do not impact the general rating formula and evaluation of the disability under the pre-and post-February 7, 2021 regulations is not required. The Veteran was examined by VA in June 2013, February 2017, and June 2020 VA Back Conditions Disability Benefits Questionnaires (DBQs). During the June 2013 VA DBQ, the Veteran reported suffering from flare-ups on a daily basis and precipitated by prolonged standing, excessive bending or sitting. The examiner noted that the Veteran is additionally limited by pain during a flare-up, but an opinion regarding any additional limitation of additional loss in range of motion was not feasible because the Veteran demonstrated uncompromised repetitive use range of motion and did not experience a flare-up during the examination. Range of motion findings showed flexion to 90 degrees; extension to 25 degrees, with pain at 20 degrees; and bilateral lateral flexion and rotation to 30 degrees, with pain. The Veteran was able to perform repetitive use testing, with flexion to 85 degrees, extension to 20 degrees, and bilateral lateral flexion and rotation to 30 degrees. The examiner noted functional impairments included less movement and pain on movement. Pain on palpation and guarding/ muscle spams not resulting in abnormal gait or spinal curvature was noted. Muscle strength and sensory testing were both normal. Further, there was no evidence of muscle atrophy, neurological impairments, IVDS, or ankylosis. There was also no evidence of arthritis and EMG testing of the bilateral extremities was normal. The Veteran was next examined by VA in February 2017. The Veteran again reported suffering from flare-ups that described as "unbearable." Range of motion findings showed flexion to 90 degrees; extension to 20 degrees; and, bilateral lateral flexion and rotation to 30 degrees. Pain was noted on examination for extension, and right and left lateral flexion, but did not result in/cause functional loss. The Veteran was able to perform repetitive use testing, with no additional loss of function or range of motion after three repetitions. The examiner was unable to determine whether pain, weakness, fatigability, or incoordination significantly limited the Veteran's functional ability with flare-ups or following repetitive use due to the fact that the Veteran was no examined during a flare-up or following repetitive use. Additionally, there was no evidence of pain with weight-bearing. Pain on palpation and guarding/ muscle spasms not resulting in abnormal gait or spinal curvature was noted. Muscle strength and sensory testing were both normal. Further, there was no evidence of muscle atrophy, IVDS, or ankylosis. The examiner noted that the Veteran suffered from mild radiculopathy of the bilateral lower extremities, but no other neurological manifestations. Finally, the Veteran was most recently examined by VA in July 2020. At that time, the Veteran again reported suffering from flare-ups that he stated results in a 50 percent reduction in range of motion. As for functional loss, the Veteran reported extended sitting, standing, and walking will cause an increase in discomfort. Range of motion findings showed flexion to 80 degrees; extension to 20 degrees; right and left lateral flexion to 20 degrees; and, right and left lateral rotation to 30 degrees. Pain was noted on examination for flexion, extension, and bilateral lateral flexion which resulted in functional loss, such as decreased ability to perform bending and twisting activities of daily living. There was evidence of pain on passive range of motion and weight-bearing. The Veteran was able to perform repetitive use testing, with additional loss of function or range of motion after three repetitions. Following repetitive use testing, flexion was found to be 80 degrees; extension to 15 degrees; right and left lateral flexion to 20 degrees; and, right and left lateral rotation to 30 degrees. Pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. During a flare-up, pain and fatigue significantly limited functional ability. The examiner noted that range of motion during a flare-up was found to be flexion to 40 degrees; extension to 10 degrees; right and left lateral flexion to 20 degrees; and, right and left lateral rotation to 30 degrees. The examiner noted that the Veteran has guarding resulting in abnormal gait or abnormal spinal contour. The examiner stated the Veteran has a minimally antalgic gait with ambulation. Muscle strength, deep tendon reflex, and sensory testing were all normal. Further, there was no evidence of muscle atrophy or ankylosis. The examiner also found the Veteran suffers from IVDS, but there was no required bed rest prescribed by a physician or treatment by a physician in the past 12 months. The examiner noted that the Veteran suffered from mild radiculopathy of the bilateral lower extremities, but no other neurological manifestations. Also, of record are VA and private treatment records dated during the pendency of this appeal. These records note treatment for both the lumbar spine and bilateral lower extremity radiculopathy disabilities beginning in 2017, but there are no additional objective findings that are materially different from those discussed above. Based on the evidence as noted above, the Board concludes that the evidence supports a rating of 20 percent for the entire period on appeal, but no higher. In this respect, the Board notes that a Veteran may be entitled to a higher disability evaluation for a musculoskeletal disability than that supported by mechanical application of the rating schedule where there is evidence that his or her disability causes additional functional loss, such as the inability... to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance, including as due to pain. 38 C.F.R. § 4.40 (2020); see Lyles v. Shulkin, 29 Vet. App. 107, 117 (2017). A higher disability evaluation may also be awarded where there is a reduction of a joint's normal excursion of movement in different planes, including changes in the joint's range of movement, strength, fatigability, or coordination. 38 C.F.R. § 4.45 (2020). However, the veteran's functional loss must result in limitation of motion sufficient to satisfy the next disability rating allowable for that particular disorder to be entitled to a higher disability rating under §§ 4.40 and 4.45. See Thompson v. McDonald, 815 F.3d 781, 785-86 (Fed. Cir. 2016). Here, with respect to functional loss, all three VA examination reports noted pain, but no additional limitations on repetitive motion. However, the Veteran has consistently reported flare-ups and the July 2020 VA examiner noted flexion limited to 40 degrees during a flare-up. As the Board notes that the June 2013 and February 2017 VA examinations failed to comply with the holding in Sharp v. Shulkin, the Board will resolve doubt in the Veteran's favor and find his functional loss equates to the criteria required for a 20 percent rating when considering the cumulative picture of his lumbar spine disability. 8 Vet. App. 202 (1995), 25 Vet. App. 32 (2011). Finally, while the Veteran has reported flare-ups, there is no indication he suffered from such restricted range of motion of the lumbar spine that it may be considered the functional equivalent of ankylosis. See Chavis v. McDonough, No. 18-2928 (April 16, 2021). In addition to considering the orthopedic manifestations of a lumbar spine disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. Here, the evidence does not support a finding for separate ratings based on either bowel or bladder impairment at any point during the pendency of the appeal. In this respect, the evidence simply does not note the presence of neurological manifestations, other than the already service-connected radiculopathy of the lower extremities, discussed below. In reaching the above conclusions, the Board has not overlooked the Veteran's statements and those submitted on his behalf with regard to the severity of his lumbar spine disability. In this regard, the Veteran and lay witnesses are competent to report on factual matters of which they have firsthand knowledge, e.g., experiencing chronic pain in his back, or experiencing a worsening of that pain. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Veteran has provided lay evidence through written statements and during his examinations conducted the course of this appeal with respect to the presence of pain and the severity of such during his VA examinations. He is competent to provide such statements, and the Board finds that the Veteran's statements are credible. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Nevertheless, the Board finds the Veteran's statements are not indicative of symptomatology that is more severe than that observed at his VA examinations and do not describe symptoms that would warrant a higher rating than what is now assigned. As such, the objective medical findings provided by the Veteran's VA examination reports have been accorded greater probative weight. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Therefore, resolving all reasonable doubt in the Veteran's favor, a rating of 20 percent for the entire period on appeal is warranted. However, to the evidence is against a finding in excess of 20 percent. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). 2. Radiculopathy of the left and right lower extremities The Veteran's right and left lower extremity disabilities are currently rated as 10 percent disabling effective from February 7, 2017 under Diagnostic Code 5280. For the sake of brevity, the Board will refer to the findings contained in the June 2013, February 2017, and July 2020 VA Back Conditions DBQs, as discussed in detail above. By way of history, the RO granted service connection for radiculopathy of the right and left lower extremities in a July 2017 rating decision and assigned initial ratings of 10 percent, effective from February 7, 2017, the date of a VA examination showing the presence of bilateral lower extremity radiculopathy. However, as the Court held in Hamilton v. Brown, a valid notice of disagreement filed to a particular claim extends to all subsequent RO and Board adjudications on the same claim until a final RO or Board decision has been rendered in that matter, or the appeal has been withdrawn by the claimant. Hamilton v. Brown, 4 Vet. App. 528, 538 (1993) (en banc), aff'd, 39 F.3d 1574, 1582-85 (Fed. Cir. 1994; see also AB v. Brown, 6 Vet. App. 35, 38 (1993) (noting that a "claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded"). Here, by filing his claim for an increased rating for the lumbar spine disability and perfecting his appeal to the Board, all manifestations of the lumbar spine disability must be considered, to include the neurological manifestations. Even in light of the July 2017 rating decision granting the separate ratings for the right and left lower extremity radiculopathy, the Board finds that these claims remain in appellate status until a final disposition of the claim is made, and no additional notice of disagreement is required in order to continue the appellate process. See ibid. Thus, the Board has jurisdiction over the claims and must consider whether he is entitled to higher ratings. Neurological impairments affecting the sciatic nerve are evaluated under Diagnostic Codes 8520 (paralysis), 8620 (neuritis) and 8720 (neuralgia), using the criteria under Diagnostic Code 8520. For diseases of the peripheral nerves, disability ratings are based on whether there is complete or incomplete paralysis of the particular nerve. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. See 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. When the involvement is wholly sensory, the rating should be for the mild, or at most the moderate degree. Id. Complete paralysis of the sciatic nerve is evidenced by the foot dangled and dropped, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under Diagnostic Code 8520, for incomplete paralysis, a 10 percent disability rating is assigned for mild incomplete paralysis. A 20 percent disability rating is assigned for moderate incomplete paralysis. If the condition is considered "moderately severe," a 40 percent disability rating is provided, and a 60 percent rating is warranted for conditions considered "severe, with marked muscular atrophy." The Board observes that the words "mild," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Here, the VA examinations from February 2017 and July 2020 determined the Veteran suffers from mild incomplete paralysis of the sciatic nerve in the right and left lower extremities. There is no further indication the Veteran suffers from radiculopathy of a greater severity, such as through findings of trophic changes in loss of hair on the lower extremities, antalgic gait, or decreased muscle strength/ atrophy. As a preponderance of the evidence is against the award of initial ratings in excess of 10 percent for right and left lower extremity radiculopathy, the benefit-of-the-doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). K. Anderson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Berry, 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.