Citation Nr: 21042762 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 16-05 625 DATE: July 13, 2021 ORDER Entitlement to an increased rating higher than 40 percent for residuals, low back injury, is denied. Entitlement to an increased rating higher than 10 percent for right lower extremity radiculopathy, associated with low back injury, for the period prior to December 14, 2019, is denied. Entitlement to an increased rating higher than 20 percent for right lower extremity radiculopathy, associated with low back injury, for the period from December 14, 2019, is denied. Entitlement to an increased initial rating higher than 20 percent for right lower extremity femoral radiculopathy, is denied. Entitlement to an increased initial rating higher than 10 percent for left lower extremity sciatic radiculopathy, is denied. REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's low back injury residual condition is not manifested by ankylosis, nor is there evidence of incapacitating episodes during the past 12 months or of bowel or bladder impairment. 2. For the period prior to December 14, 2019, the Veteran's right lower extremity radiculopathy was manifested by no more than mild incomplete paralysis of the sciatic nerve. 3. For the period from December 14, 2019, the Veteran's right lower extremity radiculopathy was manifested by no more than moderate incomplete paralysis of the sciatic nerve. 4. The Veteran's right lower extremity radiculopathy was manifested by no more than moderate incomplete paralysis of the femoral nerve. 5. The Veteran's left lower extremity radiculopathy was manifested by no more than mild incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating higher than 40 percent rating for residuals of a low back injury have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5235. 2. The criteria for a rating higher than 10 percent for associated incomplete paralysis of the sciatic nerve of the right lower extremity, for the period prior to December 14, 2019, are not met. 38U.S.C. §1155; 38 C.F.R. §§ 4.1-4.7, 4.124a, DC 8620. 3. The criteria for a rating higher than 20 percent for associated incomplete paralysis of the sciatic nerve of the right lower extremity, for the period from December 14, 2019, are not met. 38 U.S.C. § 1155; 38C.F.R. §§4.1-4.7, 4.124a, DC 8520. 4. The criteria for an initial disability rating higher than 20 percent for associated incomplete paralysis of the femoral nerve of the right lower extremity have not been met. 38 U.S.C. § 1155; 38C.F.R. §§4.1-4.7, 4.124a, DC 8526. 5. The criteria for an initial disability rating higher than 10 percent for associated incomplete paralysis of the sciatic nerve of the left lower extremity have not been met. 38 U.S.C. § 1155; 38C.F.R. §§4.1-4.7, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1992 to August 1995, with additional service in the National Guard. These matters are before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. By way of history, service connection for residuals of a low back injury was granted in a March 1996 rating decision and assigned a 10 percent rating effective August 28, 1995. An August 1998 rating decision increased the disability evaluation to 20 percent, effective March 3, 1998. The claims file includes June 1999 correspondence from the Veteran wherein he asserted his back condition had gotten worse. VA treated this as a claim for an increased rating. The increased rating claim was denied in an unappealed August 1999 rating decision. The Veteran then submitted a new application for an increased rating received by VA in September 2009, which was subsequently denied in a November 2009 rating decision. The Veteran timely submitted a November 2009 Notice of Disagreement (NOD) to initiate his appeal. Effective December 30, 2009, a temporary 100 percent disability rating was granted followed by resumption of the 20 percent disability rating effective in February 2010. A February 2010 report of general information noted that the Veteran requested an extension of the temporary 100 percent rating. In a July 2010 rating decision, an extension of the temporary 100 percent rating was granted for 30 additional days, with a resumption of a 20 percent rating from March 1, 2010. A second temporary 100 percent evaluation was granted effective April 30, 2010 with a resumption of 20 percent in June 2010. The rating decision also denied entitlement to TDIU. In an August 2010 Report of General Information, the Veteran requested reconsideration of the effective dates for the temporary 100 percent evaluation. A February 2011 rating decision denied a change to the effective dates for the temporary 100 percent rating. A Statement of the Case (SOC) was issued in March 2011. The Veteran did not perfect his appeal and the rating decision became final. The Veteran submitted a September 2011 VA 21-526B Supplemental Claim for an increased rating for degenerative disc disease. The December 2011 rating decision, the rating decision on appeal, increased the Veteran's low back injury residual condition rating to 40 percent and service connection was granted for right lower extremity radiculopathy with a rating of 10 percent, both with an effective date in September 2011. The Veteran submitted a December 2012 Notice of Disagreement (NOD) asserting entitlement to higher disability ratings. A new SOC was issued in December 2015 continuing the denial of both increased rating claims. The Veteran submitted February 2016 correspondence that VA treated as a Formal Appeal asserting that nerve damage is also present in his left leg. The Veteran submitted a statement in support of claim wherein he asserted his low back pain is worsening. The Veteran also submitted a March 2019 increased rating claim on VA Form 21-526EZ for left back and lower right leg nerve damage. This appeal was before the Board in March 2019 where it was remanded for issuance of a SOC addressing VA treatment records added to the file following the December 2015 SOC and for further development to include a new back examination that addressed the Veteran's functional ability during flare-ups and bilateral low extremity radiculopathy. The Board notes that the Veteran was afforded VA back examinations in May 2019 and November 2019 and that a SSOC was issued in August 2020. The Board finds substantial compliance with the remand directives. See Stegall v. West, 11. Vet. App. 268 (1998). The matter has returned to the Board for further appellate review. The Board notes that the Veteran submitted an April 2019 VA 21-526EZ fully developed claim asserting entitlement to another temporary 100 percent evaluation for convalescence for low back surgery. A June 2019 rating decision granted a temporary 100 percent rating effective from February 2019 to May 2019 with a resumption of the 40 percent rating in May 2019. The Board will not disturb any of the three temporary 100 percent ratings granted during the appeals period. During the appeal, an August 2020 rating decision granted an increased rating for the Veteran's service connection right lower extremity sciatic radiculopathy. As the Agency of Original Jurisdiction (AOJ) did not assign the maximum disability rating possible for the Veteran's radiculopathy or assign this rating back to the effective date of the grant of service connection, the appeal for higher disability evaluations remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). In addition, the August 2020 rating decision granted service connection for right lower extremity femoral nerve radiculopathy with a 20 percent disability rating and left lower extremity sciatic radiculopathy with a 10 percent disability rating, both with a December 14, 2019 effective date. As these grants were effectuated as secondary to the low back disorder, these matters are also on appeal. Id. The Board acknowledges that the United States Court of Appeals for Veterans Claims (Court) held in Rice v. Shinseki, 22 Vet. App. 447 (2009), that a claim for a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such is raised by the Veteran or the record. In this case, the Board notes that the Veteran submitted an April 2010 VA 21-8940 Application for Increased Compensation based on Unemployability (TDIU) asserting that he last worked in October 2007 because of his low back condition and the record includes numerous complaints regarding financial hardship. As such, the issue of entitlement to TDIU has been added above. This case raises no further issues. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). INCREASED RATING Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate DCs. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). Where 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. See 38 C.F.R. § 4.7. 1. Entitlement to an increased rating higher than 40 percent for residuals, low back injury. Disabilities of the musculoskeletal system are primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 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 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 which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40, 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Factors of joint disability include increased or limited motion, weakened movement, excess fatigability, incoordination, and painful movement, including during flare-ups and after repeated use. DeLuca, supra. The Board notes that the regulations pertaining to rating the musculoskeletal system including DCs 5000-5331 were amended, effective February 7, 2021. See 85 Fed. Reg. 76453, 76460 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DCs 5000-5331). The amendments included DC 5244 for traumatic paralysis, to include paraplegia or quadriplegia, which is not applicable to this case. After a thorough review of the old and new regulations addressing the schedule of ratings for the musculoskeletal system, the Board observes that the substantive criteria for the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) remains the same. Disabilities of the spine, DCs 5235 through 5244, are rated under the General Rating Formula, unless DC 5243 is specifically evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS Formula) based on incapacitating episodes. Ratings under the General Rating Formula are made with or without symptoms such as pain (radiating or not), stiffness, or aching in the spine affected by residuals of injury or disease. 38 C.F.R. § 4.71a. The Veteran contends that his service-connected low back disability is more severe than contemplated by the assigned 40 percent disability rating. See February 2016 Form 9. Under the General Rating Formula, a 40 percent evaluation 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 disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. "Ankylosis" is the complete immobility of the joint in a fixed position, either favorable or unfavorable. See Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (citing Stedman's Medical Dictionary 87 (25th ed. 1990)). Under DC 5243, concerning IVDS, higher ratings are predicated on incapacitating episodes (periods of acute signs and symptoms due to intervertebral disc syndrome that require bed rest prescribed by a physician and treatment by a physician). A thorough review of the claims file establishes that the Veteran has been diagnosed with IVDS but shows no incapacitating episodes, as defined by VA regulations, at any point during this appeal. No further consideration under DC 5243 is warranted. The Board has also reviewed the medical evidence of record and found no evidence of a diagnosis for ankylosis of the spine. During the period of this appeal, the Veteran was afforded VA back examinations in December 2011, May 2019, and December 2019. None of these VA examinations found evidence of ankylosis of the spine. The Veteran's post-service VA and private treatment records are also negative for ankylosis. VA treatment records include a March 2011 primary care record that noted chronic low back pain and leg pain. A September 2011 primary care record noted a report of increased low back pain that improved when the Veteran lay down. Thereafter, an October 2017 Emergency Department record reflects that the Veteran complained about chronic lower lumbar back pain that began two days prior when he was moving some furniture in the evening and felt a pull in the lower lumbar back region. He detailed that he experienced pain to the left sciatica and low central region of the back, without radiating pain down either leg. There was no incontinence of bowel or bladder, no falls or direct trauma to the spine. During this evaluation the Veteran stated that he used pain medications at home but also sought the use of a muscle relaxant to alleviate his back pain. A July 2018 orthopedic surgery record for lower back pain followup shows that the Veteran reported experiencing low back symptomatology on his right side described as a numbing type feeling but with no radicular pain. According to the record, the Veteran underwent a lumbar decompression and fusion at L5-S1, and it was noted that he had a broken screw in his spine. A December 2018 addendum record noted chronic low back pain, left paraspinal tenderness and no radiculopathy. The neurological examination noted no objective weakness/numbness. A March 2019 physical therapy consultation report noted results of a mobility assessment for the lumbar spine as moderate discomfort noted with no radicular symptoms, however, minor spasms were noted in paraspinal musculature. Based on a comprehensive review of the record, the Board finds the evidence does not support a rating higher than 40 percent for low back disability. The medical and lay evidence of record establishes that the Veteran manifested pain. While the December 2019 back examination noted functional limitation after repeated use over a period of time described in range of motion testing results as a limitation of forward flexion to 10 degrees, the record is negative for an indication that the Veteran has experienced any ankylosis of the entire thoracolumbar spine. As such, the criteria for an increased rating higher than 40 percent under the General Rating Formula are not met. The Board has reviewed the Veteran's lay testimony and the medical treatment records in the claims file, but this evidence does not tend to show that the symptoms of the low back condition warranted a rating in excess of 40 percent. For any additional functional loss to warrant a higher rating, that loss must rise to the level of the more severe symptomatology represented by the ratings in excess of those assigned percent and/or must reflect additional symptomatology not encompassed within the current assigned ratings which is sufficient to be rated separately, none of which has been shown. Deluca, supra. Furthermore, although the Veteran reported experiencing flare-ups of pain on the May VA examination, there is no indication from the Veteran's testimony that his flare-ups of symptomatology ever approximated unfavorable ankylosis of the entire thoracolumbar spine, as would be necessary for an evaluation in excess of the currently assigned ratings or which would warrant a separate rating. Sharp v. Shinseki, 29 Vet. App. 26 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016). The Board acknowledges the Veteran's statements regarding the pain and stiffness he experiences in his low back. However, painful motion and stiffness are contemplated and compensated by the 40 percent rating currently assigned. DeLuca, supra. Finally, separately ratable neurological manifestations (other than right and left lower extremity radiculopathy, which is already service connected) related to the Veteran's thoracolumbar disability are not shown in the record. There is no evidence of any bowel or bladder impairment. For all the foregoing reasons, the preponderance of the evidence is against a rating higher than 40 percent at any time during the period on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). The appeal to this extent is denied. 2. Entitlement to an increased rating higher than 10 percent for radiculopathy, right lower extremity associated with low back injury for the period before December 14, 2019. The Veteran asserts that his right lower extremity sciatic radiculopathy was worse than contemplated by the initially assigned 10 percent disability rating. See December 2012 NOD. Based on a review of the claims file, the Board finds a rating higher than 10 percent for the period before December 14, 2019 is not warranted. The rating in this case was assigned pursuant to 38 C.F.R. § 4.124a , Diagnostic Code 8520, corresponding to complete or incomplete paralysis of the sciatic nerve. Under DC 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." In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The words "mild," "moderate" and "severe," as used in the various diagnostic codes, are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive. Instead, all evidence must be evaluated. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. The December 2011 VA examiner noted moderate constant pain in the right lower extremity and mild numbness. The overall severity was found to be mild. Further, the May 2019 examiner provided a diagnosis of mild radiculopathy of the sciatic nerve in the right lower extremity. The VA treatment records do not contain any evidence that would warrant assigning a rating higher than 10 percent for the right lower extremity radiculopathy. Although the Veteran has been experiencing some right lower extremity neurological symptomatology for the entirety of the appeal period, there is no evidence which suggests that his symptomatology, which has been predominantly documented as pain only, has been more then mild in severity prior to December 14, 2019, the date of the most recent VA examination. In reaching the above conclusions, the Board has considered the Veteran's lay contentions and notes that he is certainly competent to observe pain and potentially other symptoms of his right lower extremity radiculopathy. That having been said, he does not have the training or credentials needed to evaluate the severity of those symptoms on a spectrum as required for an analysis for rating purposes. His lay contentions are thus of markedly lower probative value than the VA examiner's opinion. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence in support of assigning a rating for the peripheral neuropathy of the right lower extremity in excess of 10 percent prior to December 14, 2019. 38 C.F.R. § 4.7. To this extent, the Veteran's appeal is denied. 3. Entitlement to an increased rating higher than 20 percent for right lower extremity radiculopathy, associated with low back injury, for the period from December 14, 2019. Pursuant to the March 2019 Board remand instructions, the Veteran was afforded a December 2019 VA back conditions examination wherein the examiner confirmed a diagnosis of right lower extremity radiculopathy. The report noted that the Veteran experienced intermittent pain in both lower extremities with moderate severity. Additionally, the examiner noted moderate paresthesias and/or dysesthesias and numbness in the right lower extremity. The examiner ultimately found that the right lower extremity radiculopathy was moderate in severity. The Board notes that there are no other relevant medical records after December 2019 to consider whether a disability rating higher than 20 percent is warranted. Based on the evidence noted above, the Board finds that the appropriate rating for the Veteran's right lower extremity sciatic radiculopathy, for the period from December 14, 2019, is the assigned 20 percent rating, as there is no competent evidence of the disability being more than moderate in degree. 38 C.F.R. § 4.7. As the preponderance of the evidence is against the claim for a rating higher than 20 percent for the Veteran's service-connected right lower extremity radiculopathy, there is no doubt to be resolved. An increased rating is not warranted. See 38 U.S.C. § 5107(b). 4. Entitlement to an increased initial rating higher than 20 percent for right lower extremity femoral radiculopathy. Under 38 C.F.R. § 4.124a, DC 8526, a 10 percent rating contemplates mild incomplete paralysis of the femoral nerve; a 20 percent rating is assigned in moderate cases; and a 40 percent rating contemplates moderately severe cases. The Board also notes that the above-detailed provisions regarding the distinctions between the "mild", "moderate", and "moderately severe" ratings also apply when considering the severity of the femoral nerve condition. The Veteran's right lower femoral radiculopathy was confirmed in the December 2019 VA back examination. The examination report noted that the Veteran experienced intermittent pain in the right lower extremity with moderate severity. The overall severity of the Veteran's right lower extremity radiculopathy was found to be moderate. As a result, service connection was granted with a disability rating of 20 percent. 38 C.F.R. § 4.124a, DC 8526. The Board notes that there are no other relevant medical records after December 2019 to consider whether a disability rating higher than 20 percent is warranted. In any event, the appropriate rating for the Veteran's right lower extremity femoral radiculopathy is the assigned 20 percent rating, as there is no competent evidence of the disability being more than moderate in degree. 38 C.F.R. § 4.7. To this extent, the appeal is denied. 5. Entitlement to an increased initial rating higher than 10 percent for left lower extremity sciatic radiculopathy. The Veteran's left lower radiculopathy was confirmed in the December 2019 VA back examination. The examination report noted that the Veteran experienced intermittent pain in the left lower extremity with moderate severity. The overall severity of the Veteran's left lower extremity radiculopathy was found to be mild. As a result, service connection was granted with a disability rating of 10 percent. 38 C.F.R. § 4.124a, DC 8520. The Board notes that there are no other relevant medical records after December 2019 to consider whether a disability rating higher than 10 percent is warranted. In any event, the appropriate rating for the Veteran's left lower extremity sciatic radiculopathy is the assigned 10 percent rating, as there is no competent evidence of the disability being more than mild in degree. 38 C.F.R. § 4.7. To this extent, the appeal is denied. REMAND The Board finds a TDIU claim has been raised by the record pursuant to Rice, supra. VA must address the issue of entitlement to TDIU in increased-rating claims when the issue of unemployability either is raised expressly or by the record. The Veteran must be provided with specific notice and adjudication concerning his TDIU claim on remand. 38 C.F.R. § 3.159(b). The matter is REMANDED for the following action: (Continued on the next page) Furnish the Veteran with a 38 C.F.R. § 3.159(b) notice letter regarding the TDIU claim and request that he provide information regarding all recent and relevant treatment pertaining to his service-connected disabilities. The Veteran should be encouraged to submit any additional relevant evidence in support of his assertion that his service-connected disabilities prevent him from securing and maintaining substantially gainful employment. C. M. Collins Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Banks, 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.