Citation Nr: 21042621 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-54 769 DATE: July 13, 2021 ORDER Entitlement to a rating in excess of 10 percent prior to August 11, 2016 and in excess of 20 percent therefrom for a lumbar spine disability is denied. Entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy is denied. Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy is denied. FINDINGS OF FACT 1. Prior to August 11, 2016, even considering her complaints of pain and functional loss, the forward flexion in the Veteran's lumbar spine was not shown to be functionally limited to 60 degrees or less; combined range of motion of the lumbar spine not greater than 120 degrees was not shown; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis was not shown; ankylosis of the lumbar spine was not shown; and incapacitating episodes of intervertebral disc syndrome having a total duration of at least 2 weeks but less than 4 weeks during any 12-month period were not shown. 2. From August 11, 2016, even considering her complaints of pain and functional loss, the forward flexion in the Veteran's lumbar spine is not shown to be functionally limited to 30 degrees or less; favorable ankylosis of the thoracolumbar spine is not shown; and incapacitating episodes of intervertebral disc syndrome having a total duration of at least 4 weeks but less than 6 weeks during any 12-month period are not shown. 3. The Veteran's right lower extremity radiculopathy is productive of neuralgia manifested by moderate incomplete paralysis of the sciatic nerve. 4. The Veteran's left lower extremity radiculopathy is productive of neuralgia manifested by moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. Prior to August 11, 2016, the criteria for a rating in excess of 10 percent for a lumbar spine disability were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237, 5243. 2. From August 11, 2016, the criteria for a rating in excess of 20 percent for a lumbar spine disability have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5237, 5243. 3. The criteria for a disability rating in excess of 20 percent for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 4. The criteria for a disability rating in excess of 20 percent for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from July 1998 to December 1998 and from June 1999 to January 2005. In August 2019, the Veteran testified at a videoconference Board hearing before a Veterans Law Judge. That individual is no longer able to participate in the appeal. The Veteran was given the opportunity for another hearing, did not respond, and according to information provided to her, leads the Board to conclude an additional hearing is not desired. A transcript of that hearing is of record. This matter was most recently before the Board in June 2020. At that time, the Board remanded the appeal to have the Agency of Original Jurisdiction (AOJ) schedule the Veteran for an examination to determine the nature and severity of her low back disability. VA examined the Veteran in November 2020. Thus, the requested development has been accomplished, and the appeal has returned for further appellate consideration. The Veteran seeks ratings in excess of 10 percent for the service-connected thoracolumbar spine disability for the period prior to August 11, 2016, and in excess of 20 percent therefrom. Service connection for degenerative arthritis and intervertebral disc syndrome with chronic intermittent lumbar strain was granted in a June 2013 rating decision, and evaluated as 10 percent disabling, effective November 23, 2010 under Diagnostic Code 5237. In a February 2018 rating action, the RO granted a 20 percent rating to the service-connected lumbar spine disability, effective August 11, 2016, the date of receipt of the Veteran's intent to file a claim for increased compensation for this disability. Diagnostic Code 5237 contemplates lumbosacral strain. Back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating IVDS based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38C.F.R. §4.71a. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, for the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, for 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 warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, for the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, for 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 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 5237. 38C.F.R. §4.71a, Diagnostic Codes 5235 through 5242. Note 1 following the General Rating Formula specifies that any associated objective neurologic abnormalities including but not limited to bowel or bladder impairment are to be separately evaluated under an appropriate diagnostic code. Note 2 following the General Rating Formal provides that normal forward flexion of the thoracolumbar spine, including the thoracolumbar spine, is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. 38C.F.R. §4.71a, Diagnostic Codes 5235 through 5242. Normal ranges of motion of the cervical spine are flexion from 0 to 45 degrees, extension from 0 to 45 degrees, lateral flexion from 0 to 45 degrees, and lateral rotation from 0 to 80 degrees. 38 C.F.R. § 4.71, Plate V. Under the current Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least one week but less than two weeks during a 12-month period on appeal 20 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least two weeks but less than four weeks during a 12-month period on appeal. A 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant 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, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). It is noted that on February 7, 2021, during the course of this appeal, revisions to the Schedule for Rating Disabilities that addresses the musculoskeletal system went into effect. The Supreme Court has held that statutes generally may not be construed to have retroactive effect unless their language requires that result. See Landgraf v. USI Film Products, 511 U.S. 244 (1994). In Karnas, the Federal Circuit held that the more favorable regulations should apply to the Veteran. See Karnas v. Derwinski, 1 Vet. App. 308 (1991). However, the Federal Circuit overruled Karnas to the extent that it allowed for retroactive application and conflicted with U.S. Supreme Court and Federal Circuit precedents. Specifically, in Kuzma, the Federal Circuit held that the Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, Karnas allows the old criteria to be applied before and after the effective date of the amendment, if such is more favorable to the Veteran. In light of Kuzma, the amended regulation cannot be applied prior to the effective date unless it explicitly provides otherwise. In other words, the old and new regulations are for consideration with regard to rating the Veteran's disability, and he is entitled to the more favorable regulation; however, if the revised criteria are more favorable to the Veteran and provide for an increased rating, that award may not be made effective before the effective date of the change. See 38 U.S.C. § 5110 (g); VAOPGCPREC 3-00. Here, the amendments to the rating schedule do not have any retroactive application. In this case, the revisions to the regulations have a limited effect because they do not change how the cervical spine is rated. Rather, the revisions revised Diagnostic Codes 5242 and 5243, which states that Diagnostic Code 5243 is assigned when there is disc herniation with compression and or irritation of the adjacent nerve root; and to assign Diagnostic Code 5242 for all other diagnoses. Diagnostic Code 5244 also adds a new diagnostic code for traumatic paralysis. Here, the Veteran has not been diagnosed, nor does he assert, that he has IVDS or traumatic paralysis and the revisions do not impact the Veteran's thoracolumbar spine rating. Period Prior to August 11, 2016 The Veteran seeks a rating in excess of 10 percent for the service-connected lumbar spine for the period prior to August 11, 2016. The Board finds that the weight of the evidence of record is against a rating in excess of 10 percent for the thoracolumbar spine disability for the prescribed period under the General Rating Formula for Diseases and Injuries of the Spine and IVDS criteria. First, the evidence of record does not show that the Veteran has experienced any IVDS during the period prior to August 11, 2016. The April 2013 VA examiner did not indicate the presence of IVDS and IVDS is not shown on VA and/or private treatment records for the prescribed period. Moreover, there is no evidence showing that the Veteran has ever been prescribed bed rest to treat her lumbar spine disability. Because the prescription of bed rest is a foundational requirement of a rating under this section of the rating schedule, the absence of any prescribed bed rest precludes a rating from being assigned under it. As such, a rating based on IVDS is not appropriate, and it is therefore more beneficial to evaluate the Veteran's lumbar spine disability under the General Rating Formula for Diseases and Injuries of the Spine. The Board finds that a higher rating in excess of 10 percent is also not warranted for the lumbar spine under the General Rating Formula for Diseases and Injuries of the Spine for the period prior to August 11, 2016. In order for the Veteran to be awarded a 20 percent rating under the General Rating Formula for Diseases and Injuries of the Spine, the evidence would have to show that lumbar spine range of motion that is functionally limited to 60 degrees or less; combined range of motion of the lumbar spine not greater than 120 degrees was not shown; 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. This has not been demonstrated in the Veteran's case. Specifically, during an April 2013 VA examination, forward flexion of the thoracolumbar spine was to 90 degrees. The Veteran's combined range of motion of the lumbar spine was 240. In addition, there was no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Thus, in view of the foregoing, the Board finds that the weight of the evidence is against a rating in excess of 10 percent for the thoracolumbar disability under the General Rating Formula for Diseases and Injuries of the Spine for the period prior to August 11, 2016. In addition, during the period prior to August 11, 2016, repetitive testing of the lumbar spine resulted forward flexion of the lumbar spine to 70 degrees without evidence of painful motion. Thus, range of motion and pain were not shown to be so limiting as to functionally limit the range of motion to a degree that would support a higher rating. The Veteran's rating is largely the result of the application of such functional limitations, as her demonstrated range of motion equivalent to a 10 percent rating prior to August 11, 2016 is in recognition of the functional limitations. The Veteran's medical record does not demonstrate any additional functional limitations. As such, a higher rating is not warranted based on the DeLuca factors for the lumbar spine for the period prior to August 11, 2016. Period from August 11, 2016 The Veteran seeks a rating in excess of 20 percent for the service-connected lumbar spine disability for the period from August 11, 2016. First, while the November 2020 examination indicated that the Veteran had experienced IVDS, it was not characterized by episodes of acute signs and symptoms that required bed rest prescribed by a physician and treatment by a physician in the previous 12 months. Thus, because the prescription of bed rest is a foundational requirement of a rating under this section of the rating schedule, the absence of any prescribed bed rest precludes a rating from being assigned under it. As such, a rating based on IVDS is not appropriate, and it is therefore more beneficial to evaluate the Veteran's lumbar spine disability under the General Rating Formula for Diseases and Injuries of the Spine for the period from August 11, 2016. The Board finds that a higher rating in excess of 20 percent is also not warranted for the lumbar spine under the General Rating Formula for Diseases and Injuries of the Spine for the period from August 16, 2016. The Veteran does not demonstrate limitation of motion (flexion) consistent with a 40 percent rating. At January 2018 and November 2020 VA examinations, she demonstrated normal flexion to 40 and 50 degrees, respectively, even considering pain. The medical record does not demonstrate findings consistent with a higher 40 percent evaluation as she did not demonstrate forward flexion limited to 30 degrees or less. These same examination reports also show that there was no evidence of any thoracolumbar spine ankylosis. As such, a rating in excess of 20 percent for the lumbar spine disability for the period from August 11, 2016 is not warranted. However, even when considering the additional functional loss, and as noted in the preceding paragraph, the Veteran's forward flexion has been to 40 and 50 degrees during the prescribed period. The Board recognizes the Veteran's complaints of chronic severe pain, loss of motion, and functional loss as a result of her lumbar spine condition, notably her difficulty with bending, difficulty with prolonged standing and sitting, and that she spends most of her time lying down due to daily back pain. See November 2020 VA examination report. However, even considering this evidence, the degree of additional limitation reflected would not result in forward flexion limited to 30 degrees or less, symptoms more nearly approximating the entire spine fixed in flexion or extension and one of the additional symptoms set forth in Note 5 to the General Rating Formula, even during a flare-up. See Chavis v. McDonough, No. 18-2928 (April 16, 2021). Therefore, as the weight of the evidence is against a finding that the Veteran has had forward flexion of the thoracolumbar spine limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine, a rating in excess of 20 percent is not warranted for the period from August 11, 2016 under the General Rating Formula for Diseases and Injuries of the Spine. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. ii) Bilateral Lower Extremity Radiculopathy Pursuant to Note (1) of the General Rating Formula, VA is to evaluate any associated objective neurologic abnormalities separately under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, Diagnostic Code 5237, Note (1). The Veteran is currently rated under Diagnostic Code 8520 for right lower extremity radiculopathy and left lower extremity radiculopathy involving the sciatic nerve at 20 percent prior under Diagnostic Code 8520. Of note, separate ratings involving the sciatic and femoral nerves, as found here, do not constitute impermissible pyramiding under 38 C.F.R. § 4.14. Descriptive words such as "slight," "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 the evidence for "equitable and just decisions." 38 C.F.R. § 4.6. Nevertheless, according to MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY (11th Ed. 2007), "mild" means temperate or not severe, "moderate" means limited in scope or effect, and "severe" means very painful or harmful or of a great degree. The Veteran's right and left lower extremity radiculopathy of the sciatic nerves are rated under 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under Diagnostic Code 8520, moderate incomplete paralysis warrants a 20 percent disability rating, moderately severe incomplete paralysis warrants a 40 percent rating, and severe incomplete paralysis with marked muscle atrophy warrants a 60 percent disability rating. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. Complete paralysis of the sciatic nerve is when the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost and warrants an 80 percent rating. Id. The Board finds that the weight of the evidence is against ratings in excess of 20 percent for the right and left lower extremity radiculopathy. Here, the Veteran's symptoms have been moderate throughout the rating period. See November 2020 Spine Disability Benefits Questionnaire (DBQ). Further, there is no indication of complete or at least moderately severe, incomplete paralysis, of the right or left lower extremity. Id. Therefore, the weight of the evidence is against ratings in excess of 20 percent for either the right or left lower extremity radiculopathy, and the claims are denied. Gilbert, supra; 38 C.F.R. § 3.102. TIFFANY HANSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Carole Kammel, 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.