Citation Nr: 22005168 Decision Date: 02/01/22 Archive Date: 02/01/22 DOCKET NO. 17-39 757 DATE: February 1, 2022 ORDER For the appellate period prior to August 19, 2021, a 40 percent rating, but no higher, for back injury residuals with mild degenerative changes and scoliosis, is granted. Beginning August 19, 2021, a rating higher than 40 percent for back injury residuals with mild degenerative changes and scoliosis, is denied. Beginning August 19, 2021, a separate rating of 10 percent, but no higher, for right lower extremity lumbar radiculopathy, is granted. FINDINGS OF FACT 1. For the appellate period prior to August 19, 2021, the evidence of record indicates the Veteran's mild degenerative changes of the low back and scoliosis manifested to the equivalent of forward flexion of the thoracolumbar spine 30 degrees or less. 2. From August 19, 2021, the Veteran's service-connected low back disability is not manifested by unfavorable ankylosis or any incapacitating episodes of intervertebral disc syndrome. 3. The Veteran's radicular pain in the right lower extremity, first noted in the August 2021 examination, is a neurological manifestation of the service-connected back disability and is no more than mild in nature. 4. Service connection is already in effect for associated left lower extremity radiculopathy, which is no more than mild in nature. CONCLUSIONS OF LAW 1. For the appellate period prior to August 19, 2021, the criteria for a 40 percent rating, but no higher, for residuals of back injury with mild degenerative changes and scoliosis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes (DC) 5242, 5243. 2. From August 19, 2021, the criteria for a rating higher than 40 percent rating for residuals of back injury with mild degenerative changes and scoliosis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5242, 5243. 3. From August 19, 2021, the criteria for a separate rating of 10 percent, but no higher, for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty from October 1987 to October 1990. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated February 2016 and December 2016 of a Department of Veterans Affairs (VA) Regional Office (RO), the agency of original jurisdiction (AOJ). In June 2021, the Veteran testified during a virtual Board hearing before the undersigned Veterans Law Judge. In July 2021, the Board remanded for additional development the claim for service connection for scoliosis, which was separate and distinct from the claim for an increased rating for residuals back injury with mild degenerative changes which was also on appeal. In a September 2021 rating decision, the RO increased the rating for residuals back injury with mild degenerative changes to 40 percent disabling effective August 19, 2021 and included scoliosis as part of the service-connected low back disability. Therefore, scoliosis is service connected as part of the low back disability and evaluated in conjunction with that disability as the August 2021 examiner did not delineate which symptoms were associated with each disability. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Rating Pertinent Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the low rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different DC or DCs, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several DC; however, the critical element in doing so is that none of the symptomatology is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The assignment of a particular DC is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One DC may be more appropriate than another based on such factors as an individual's relevant medical history, the DC, and the demonstrated symptomatology. Any change in a DC by VA must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625 (1992). Where the veteran is appealing the rating for an already established service-connected condition, his or her present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's back injury residuals with mild degenerative changes were rated at 10 percent under DC 5010-5295 from October 4, 1990 to December 24, 2015. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. From December 24, 2015 to August 19, 2021 the Veteran's residuals back injury with mild degenerative changes and scoliosis was rated as 10 percent disabling, and 40 percent disabling thereafter under DC 5242. 38 C.F.R. § 4.71a, DC 5242. During the pendency of the instant appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select DCs "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If 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. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the former criteria prior to February 7, 2021 and both the former and revised rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Prior to the regulatory change, the relevant rating criteria were as follows. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for DCs 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) are made 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. Under the General Rating Formula, a 20 percent rating is warranted where there is 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 is not greater than 120 degrees; or 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. See id. A 40 percent rating is available when there is forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is available for unfavorable ankylosis of the entire thoracolumbar spine. See id. A 100 percent rating is available for unfavorable ankylosis of the entire spine. See id. 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 (ROM) refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined ROM of the thoracolumbar spine is 240 degrees. The normal ROMs for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined ROM. 38 C.F.R. § 4.71a, DCs 5235-5243, Note (2); see also Plate V. Unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, DCs 5235-5243, Note (5). IVDS (preoperatively or postoperatively) may be evaluated either under the General Rating Formula or under the Formula for Rating IVDS Based on Incapacitating Episodes (Formula for Rating IVDS), 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, DC 5243. Under the Formula for Rating IVDS, a 20 percent rating requires incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating requires incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, and a 60 percent rating requires incapacitating episodes having a total duration of at least six weeks during the past 12 months. An "incapacitating episode" is defined as 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, DC 5243, Note (1). Under DC 5003, degenerative arthritis established by radiographic imaging/X-ray findings will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint involved. Limitation of motion must be objectively confirmed by clinical findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Where there is X-ray evidence of arthritis and limitation of motion, but not to a compensable degree under the DC, a 10 percent rating is for assignment for each major joint affected. A rating in excess of 10 percent is not available absent X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003. As of February 7, 2021, the changes to the DCs are as follows. Unless noted below, no changes were made to the relevant rating criteria. DC 5242 was changed to clarify that it applied to degenerative arthritis and degenerative disc disease other than intervertebral disc syndrome (also, see either 5003 or 5010). DC 5243, applicable to IVDS, was changed to clarify that it is only to be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root, and that DC 5242 should be assigned for all other disc diagnoses. The rating criteria under DC 5003 did not change on February 7, 2021; however, the DC was changed to clarify that it only applied to degenerative arthritis, other than post-traumatic. Post-traumatic arthritis is separately rated under DC 5010. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DCs 5003, 5010). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him or her through their senses. See Layno v. Brown, 6 Vet. App. 465 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Analysis The Veteran contends that a higher rating is warranted for his low back disability, noting that he has an abnormal gait which causes hip and knee pain, as well as scoliosis. See February 2017 Notice of Disagreement. In a February 2017 statement in support of claim, he stated that the examiner did not discuss or compare the x-ray findings and his pain level was more severe. The Veteran asserted that range of motion was not an accurate portrait of his disability as his back hurt all the time and he had learned to live with the pain. He also stated that he occasionally walked with a limp and guarded to the left side. On review of the evidence, both lay and medical, and providing the Veteran the benefit of the doubt, the Board finds that a 40 percent rating for the entirety of the rating period on appeal is approximated. Turning to the evidence, two VA compensation examinations were provided in February and October 2016. The two examinations found initial range of motion to be normal with no additional loss of function or loss of range of motion after repetitive use testing. However, the examiners also indicated they were unable to say without mere speculation whether there would be additional loss of functional ability with repeated use over time, or with flare-ups in October 2016. The Court has held that upon eliciting information from the record and a veteran regarding the severity, frequency, duration, or functional loss manifestations during, e.g., flare-ups, a VA examiner must "express an opinion on whether pain could significantly limit functional ability and the examiner's determination in that regard should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss" due to pain on use or during flare-ups. Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). The Board may accept a VA examiner's statement that he or she cannot offer an opinion in that regard without resorting to speculation, but only after determining that this is not based on the absence of procurable information or on a particular examiner's shortcomings or general aversion to offering an opinion on issues not directly observed. Here, there was no explanation as to why additional loss of functional ability could not be provided by the February 2016 VA examiner, and the October 2016 VA examiner stated it was not possible to objectively quantitate additional range of motion or symptom changes associated with flare-ups or prolonged repetitive use activities as such would resort to speculation and that the range of motion of the joints were repeated three times with no change in strength, stability, or degrees of motion. In both respects, the Board finds noncompliance with Sharp, and the two examinations are therefore inadequate for rating purposes. The Board will however consider the following evidence. According to a June 2017 VA treatment record, x-rays taken in February 2016 showed evidence of degenerative joint disease (DJD) and minimal degenerative disc disease (DDD) of the lumbar spine. The Veteran reported he took ibuprofen as needed, approximately two times per month and requested magnetic resonance imaging (MRI) due to an increase in pain, which he stated was so bad last week he could not stand and had to crawl to his bed. He denied numbness or pain in his lower extremities. On examination, the physician found the Veteran's back was mildly tender in the upper lumbar region as well as pain with flexion, extension, and lateral movement, left worse than right, and with rotation, bilaterally. In a December 2018 VA treatment record, the Veteran reported his low back pain was intermittent, and he only occasionally had tingling and pain radiating to the left lower extremity. Another VA compensation examination was provided in August 2021, signed by the examiner in September 2021. The Veteran reported daily pain that he described as an achy, burning pain with a sharper radiating pain into the right thigh, which occurred several times throughout the day and could last for five to fifteen minutes and triggered by activities such as bending and lifting. He also reported flare-ups which resulted in functional impairment of decreased ability to bend, stoop, lift, or stand for prolonged periods of time. Initial range of motion was flexion to 40 degrees, and extension, right and left lateral flexion and right and left lateral rotation to 20 degrees, with pain associated with all movements. Passive ROM was not measured due to fear it could cause injury or further pain. Repetitive use did not result in additional range of motion loss. Repeated use over time and flare-up range of motion were estimated to be flexion to 30 degrees, extension to 10 degrees, right and left lateral flexion to 10 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 20 degrees. The examiner indicated the Veteran was positive for guarding or muscle spasm which did not result in abnormal gait or spine contour. Contributing factors to the disability included the Veteran must alternate positions because he could not sit or stand for prolonged periods of time. There was no muscle atrophy, normal reflexes and a negative straight leg raise test, bilaterally. The examiner also noted there was no radiculopathy, ankylosis, or IVDS. However, the Veteran made regular use of a cane and had an antalgic gait to the right secondary to low back pain. The Board finds that flexion to 30 degrees is approximated for the entirety of the appeal period, warranting a 40 percent rating. As noted above, the Veteran has been provided three VA compensation examinations for his low back disability, two of which are inadequate for rating purposes. The most recent August 2021 VA compensation examination report contains adequate findings which indicate more severe limitation of motion than in prior examinations. To correct the deficiencies in the previous examination reports, the Board will apply the findings more favorable to the Veteran contained in the August 2021 VA compensation examination report. In this regard, the August 2021 VA compensation examination found that, during repeated use over time and flare-up testing, the Veteran's range of motion would be limited to 30 degrees flexion. In addition, the Veteran reported daily pain which occurred several times throughout the day and could last for five to fifteen minutes, triggered by activities such as bending and lifting and flare-ups which resulted in functional impairment described as decreased ability to bend, stoop, lift, or stand for prolonged periods of time. The Board finds that these symptoms and limitations are consistent with the Veteran's reports throughout the rating period on appeal, to specifically include his symptoms during flare-ups. For example, the Veteran reported moderate pain at night and during the day which interfered with sitting or standing in his February 2016 VA compensation examination and at his October 2016 VA compensation examination, the Veteran reported difficulty walking due to pain and low back pain which may or may not occur without flare-up. In addition, the Veteran reported in a June 2017 VA treatment record that his pain was severe, noting that he had to crawl to his bed. Moreover, the August 2021 examiner documented all symptoms associated with the service-connected back disabilities, to include the diagnosed scoliosis, and did not delineate which symptoms were associated with each disability. While the symptoms solely associated with scoliosis are not provided, all symptoms of the thoracolumbar spine are collectively accounted for under the 40 percent rating granted herein. Even with scoliosis, a higher rating is not approximated as there is no evidence to meet the criteria, i.e., an ankylosed spine or the functional equivalent thereof. For these reasons, the Board resolves any doubt in the Veteran's favor and finds that the service-connected low back disability is manifested by flexion limited to 30 degrees or less. Accordingly, a rating of 40 percent under DC 5242 for the low back disability is approximated for the period on appeal prior to August 19, 2021. 38 C.F.R. §§ 4.71a, DC 5242. A rating higher than 40 percent, however, is not approximated before or after August 19, 2021. Here, there is no evidence demonstrating that the Veteran has ankylosis of the spine, nor are the symptoms shown to be the functional equivalent of ankylosis, to warrant a higher rating. See Chavis v. McDonough, No. 18-2928, 2021 U.S. App. Vet. Claims LEXIS 660 (Apr. 16, 2021) (application of 38 C.F.R. §§ 4.40 and 4.45 permit consideration under the Spine Formula of a rating based on ankylosis if a veteran's functional loss is the functional equivalent of ankylosis). The Board also considered the Veteran's reported symptoms related functional impairments, and his argument that limitation of motion does not accurately portray his disability. Even considering additional limitation of motion or function of the thoracolumbar spine due to pain or other symptoms (see 38 C.F.R. §§ 4.40, 4.45, 4.59), the evidence does not show that the low back disability more nearly approximates the criteria for a rating higher than 40 percent. In other words, the Board finds that any functional impairment the Veteran experiences on account of his low back disability is contemplated by the 40 percent rating assigned herein and is not of such severity that it could be characterized by unfavorable ankylosis of the thoracolumbar spine. In sum, the Board grants the 40 percent rating, but no higher, for the entire period on appeal. Neurological Manifestations of the Low Back Disability The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance in rating diseases or injuries of the spine. 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. DC 8520 provides rating criteria for paralysis of the sciatic nerve. Under DC 8520, an 80 percent disability rating is assigned for complete paralysis of the sciatic nerve, demonstrated by foot drop, no active movement possible of the muscles below the knee, and knee flexion that is weakened or (very rarely) lost. Lower disability ratings are provided for incomplete paralysis, defined by the Rating Schedule as "a degree of lost or impaired function substantially less than the type picture for complete paralysis given." A 60 percent disability rating is assigned for severe, incomplete paralysis, with marked muscular atrophy. A 40 percent disability rating is assigned for moderately severe, incomplete paralysis. A 20 percent disability rating is assigned for moderate, incomplete paralysis. A 10 percent disability rating is assigned for mild, incomplete paralysis. 38 C.F.R. § 4.124a, DC 8520. Neither the Rating Schedule nor the regulations provide definitions for descriptive words such as "mild," "moderate," "moderately severe," and "severe." Sellers v. Wilkie, 30 Vet. App. 157 (2018) ("DC 8520 does not define 'mild,' 'moderate,' 'moderately severe,' or 'severe,' or generally associate those terms with specific symptoms"). It should also be noted that use of terminology such as "mild" and "moderate" by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. Rather than applying a mechanical formula, the Board must instead evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The Veteran is already service connected for associated radiculopathy in the left lower extremity, rated as 10 percent disabling under DC 8520, effective from September 2016, and the Board finds that a higher rating is not warranted. During the pendency of the claim, the Veteran has seldom complained of his left lower extremity radiculopathy. In December 2018, he stated he only occasional radiating pain to the left lower extremity. In his June 2021 hearing, the Veteran stated he sometimes got sciatic nerve pain down the side of his leg but did not specify which leg. See June 2021 Hearing Transcript, page 5-6. The Veteran reported during his August 2021 VA examination that he had been experiencing radiating pain into the right thigh. Although the August 2021 examination was negative for radiculopathy, the Board notes that radiating pain is an observable symptom that the Veteran is competent to report. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Thus, with resolution of all reasonable doubt in the Veteran's favor, the Board finds that the criteria for a separate 10 percent rating for right lower extremity radiculopathy, as a neurological manifestation of the low back disability, have been met from August 19, 2021 under DC 8520 for mild incomplete paralysis of the right sciatic nerve. Although the Veteran reports that the right radicular pain is sharp in nature, he also states that the radiculopathy symptoms are generally random, occurring during a flare-up. Based on these lay reports, the Board finds that the right radicular symptoms are occasional in nature. As such, a 10 percent rating, but not higher, for right lower extremity radiculopathy is approximated. The Board considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. Here however, the Veteran reported to the August 2021 VA compensation examiner that he was employed full-time. He did not assert the inability to maintain his current job due to his service-connected disabilities. The Board, therefore, finds that Rice is inapplicable, and a TDIU request has not been inferred. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Moldawer, 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.