Citation Nr: 22010495
Decision Date: 02/23/22	Archive Date: 02/23/22

DOCKET NO. 09-47 591
DATE: February 23, 2022

ORDER

From July 6, 2001, to March 2, 2007, an initial 20 percent rating for a lumbar spine disability is granted.

From March 2, 2007, to September 14, 2009, a 40 percent rating for a lumbar spine disability is granted.

From September 14, 2009, to November 30, 2009, a 20 percent rating for a lumbar spine disability is granted.

From November 30, 2009, to May 10, 2016, a rating in excess of 20 percent for a lumbar spine disability is denied.

From May 10, 2016, a rating in excess of 40 percent for a lumbar spine disability is denied.

From December 17, 2015, to June 19, 2017, a rating in excess of 40 percent for right lower extremity radiculopathy is denied.

FINDINGS OF FACT

1. From July 6, 2001, to March 2, 2007, the evidence shows moderate limitation of the lumbosacral spine, but not severe limitation or limitation characterized by flexion to 30 degrees or less.

2. From March 2, 2007, to September 14, 2009, the evidence shows thoracolumbar flexion limited to 30 degrees.

3. From September 14, 2009, to May 10, 2016, the evidence shows moderate limitation of the lumbosacral spine, but not severe limitation or limitation characterized by flexion to 30 degrees or less.

4. The evidence does not show ankylosis or fixation of the thoracolumbar spine at any point during the claim period.

5. The evidence does not show marked muscle atrophy of the right lower extremity or complete paralysis of the sciatic nerve from December 17, 2015, to June 19, 2017.

CONCLUSIONS OF LAW

1. From July 6, 2001, to March 2, 2007, the criteria for an initial 20 percent rating for a lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5242 (2001), (2002), (2021).

2. From March 2, 2007, to September 14, 2009, the criteria for a 40 percent rating for a lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5242.

3. From September 14, 2009, to November 30, 2009, the criteria for a 20 percent rating for a lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5242.

4. From November 30, 2009, to May 10, 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. §§ 4.1, 4.3, 4.7, 4.71a, DC 5242.

5. From May 10, 2016, the criteria for a rating in excess of 40 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5242.

6. From December 17, 2015, to June 19, 2017, the criteria for a rating in excess of 40 percent for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DC 8520.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from November 1967 to October 1971.

This appeal has a long procedural history stemming from the initial grant of service connection for the Veteran's lumbar spine disability. In relevant part, the Board issued a decision on the ratings for the Veteran's lumbar spine disability and associated lower extremity radiculopathy in May 2018. In June 2019, the Court of Appeals for Veterans Claims (Court) granted a joint motion for partial remand in which the Veteran appealed the denial of increased rating for the back and a rating in excess of 40 percent for the right lower extremity from December 17, 2015, to June 19, 2017. He chose not to challenge the other ratings for the right and left lower extremities or any other issue on appeal. The Board remanded the issues four subsequent times, and the Agency of Original Jurisdiction (AOJ) granted a 40 percent rating for the lumbar spine disability effective May 10, 2016.

The Veteran and his daughter testified at a hearing before a Veterans Law Judge (VLJ) in October 2014.  A March 2021 letter informed the Veteran that the VLJ who conducted the October 2014 hearing was no longer at the Board.  The Veteran did not respond to the request for an optional hearing.

Increased Ratings

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R., Part 4.  Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized.  38 C.F.R. § 4.1.  Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work.  38 C.F.R. § 4.2.  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  38 C.F.R. § 4.7.  Reasonable doubt regarding degree of disability is to be resolved in favor of the claimant.  38 C.F.R. § 4.3.

Lumbar Spine Disability

The Veteran's lumbar spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. He currently receives a 10 percent rating from July 6, 2001, to November 30, 2009, a 20 percent rating from November 20, 2009, to May 10, 2016, and a 40 percent rating thereafter. The criteria for evaluating spine disabilities were amended effective September 23, 2002, and again on September 26, 2003.  

Prior to September 26, 2003, the criteria for spine disabilities addressed different ailments of the spine, such as ankylosis, limitation of motion, intervertebral disc syndrome, and lumbosacral strain. The Veteran is not service connected for lumbosacral strain, and the evidence does not show ankylosis of thoracolumbar spine. Therefore, the Board finds his spine disability should be rated based on limitation of motion or intervertebral disc syndrome (IVDS) for the period prior to September 26, 2003.

Under Diagnostic Code 5292, limitation of motion of the lumbar spine was assigned a 10 percent rating for slight limitation, a 20 percent rating for moderate limitation, and a 40 percent rating for severe limitation. Limitation of the dorsal spine was assigned a zero rating for slight limitation and 10 percent rating for both moderate and severe limitation under Diagnostic Code 5291. 38 C.F.R. § 4.71a (2002).      

The Diagnostic Code for IVDS as amended in September 2002 provides for IVDS ratings based on incapacitating episodes or based on the combination of orthopedic and neurologic manifestation, whichever results in a higher rating. For incapacitating episodes, Diagnostic Code 5293 provides for a 10 percent rating for IVDS with incapacitating episodes having a total duration of at least one week but less than two weeks during a 12-month period, a 20 percent rating for incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period, and 40 and 60 percent ratings for more frequent incapacitating episodes. 38 C.F.R. § 4.71a (2002). The criteria prior to September 23, 2002, provided for a 10 percent rating for mild IVDS symptoms, a 20 percent rating for moderate symptoms with recurring attacks, a 40 percent rating for severe symptoms with recurring attacks and intermittent relief, and a 60 percent rating for pronounced condition with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurologic findings appropriate to the site of diseased disc with little intermittent relief. 38 C.F.R. § 4.71a (2001).

Beginning September 26, 2003, 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, 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 warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2003).  

Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id.  at Note 1.  

Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id.  at Note 5.

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011).

Resolving doubt in the Veteran's favor, the Board finds the criteria for an initial 20 percent rating from July 6, 2001, to March 2, 2007, have been met. The Board also finds the criteria for a 40 percent rating from March 2, 2007, to September 14, 2009, and for a 20 percent rating from September 14, to November 30, 2009, have been met.  The Board finds that a rating in excess of 20 percent from September 14, 2009, to May 10, 2016, and in excess of 40 percent from May 10, 2016, have not been met.

The evidence shows the Veteran experienced moderate limitation of motion from July 6, 2001, to March 2, 2007. VA treatment records prior to 2004 show complaints of pain but no measurements of range of motion. In June 2004, a treating provider noted an examination of the lumbosacral spine revealed accentuated lordosis abnormal flexion at 15 degrees. In July 2004, the Veteran described back pain as intermittent with a few hours each day where he was pain free. In January 2005, the Veteran began describing his back pain as constant. VA treating providers recorded full range of motion, including flexion, in January and August 2005. A VA treatment record from September 2006 shows the Veteran had flexion to 40 degrees. In November 2006, a treating provider measured full range of motion of the lumbosacral spine.

The Board finds the Veteran's range of motion varied during the period from July 2001 to March 2007. While the Veteran was found to have full range of motion on several occasions, he had significantly limited range of motion on other occasions. Accordingly, the designation of moderate limitation seems most appropriate for his disability picture at this time. The Board has considered the notation of accentuated lordosis abnormal flexion at 15 degrees from June 2004, which could represent an increase in pain and other limiting symptoms. Nonetheless, the Board finds that single notation, in context of the other evidence, is not sufficient to find the Veteran had a severe disability picture or that his disability picture was most consistent with flexion limited to 30 degrees or less. The Board has, however, considered that notation and the notation of limited flexion in September 2006 in finding the Veteran had moderate limitation. A 20 percent rating is most appropriate prior to March 2007.   

Next, the evidence shows the Veteran's thoracolumbar flexion limited to 30 degrees from March 2, 2007, to September 14, 2009. On March 2, 2007, a treating provider measured flexion of the lumbosacral spine to 30 degrees. The September 2007 examiner recorded flexion to 75 degrees. In February 2008, the Veteran again had abnormal flexion limited to 30 degrees. VA treatment records show the Veteran underwent a lumbar discography procedure in August 2008. The Veteran demonstrated greater range of flexion during the September 2009 examination. The Board finds the notations of flexion limited to 30 degrees in March 2007 and February 2008 warrant a 40 percent rating for the Veteran's lumbar spine disability during this period. However, the evidence appears to show that the August 2008 discogram and subsequent treatment improved the Veteran's disability picture. The first evidence of that improvement comes from the VA examination on September 14, 2009.

On September 14, 2009, the examiner measured the Veteran's flexion to 70 degrees with no additional limitation after repeated motion. The Veteran reported fatigue, decreased motion, stiffness, and weakness but denied flare-ups. There do not appear to be any measurements of range of motion between the September 2009 and December 2015 examinations. During the October 2014 Board hearing, the Veteran testified that bending to pick things off the floor was not difficult for him, although he reported that he experienced pain and sometimes used a tool to pick up items. The December 2015 examiner measured flexion to 80 degrees and stated limitation with repeated use could not be estimated without resort to speculation. The Veteran denied flare-ups and reported functional limitation as difficulty with walking and running but not limitation of motion. The Board finds the Veteran's disability picture during this period is most consistent with moderate limitation of motion and the 20 percent rating assigned by the AOJ. The evidence does not show severe limitation of motion or flexion limited to 30 degrees. Indeed, even considering later examiners' findings of additional 10 to 15 degrees or 35 to 50 percent limitation with repeated use and flare-ups, the Veteran's motion would not have been limited to 30 degrees of flexion based on the measurements of 70 and 80 degrees during this period.

The May 2016 examiner recorded flexion to 40 degrees initially and to 25 degrees after repeated use. During the October 2016 examination, the Veteran had flexion to 55 degrees initially. The June 2017 examiner measured the Veteran's flexion to 50 degrees. The September 2020 examiner measured the Veteran's initial flexion to 60 degrees but estimated an additional 15 degrees of limitation, or flexion to 45 degrees, with flare-ups and repeated use. During the January 2021 examination, the Veteran had flexion to 40 degrees, and the examiner estimated he would experience an additional loss of 10 degrees, flexion to 30 degrees, during flare-ups. The September 2021 examiner measured initial flexion to 42 degrees and flexion to 30 degrees during flare-ups. In a November 2021 opinion, the medical expert found that the Veteran could experience approximately 35 to 50 percent reduction in range of motion with repeated use over time. Based on the evidence of limitation of flexion to 30 degrees or less, the AOJ awarded a 40 percent rating beginning May 10, 2016.

Forty percent was the highest rating for limitation of motion under the rating criteria effective prior to September 26, 2003, and under the General Rating Formula for the Spine, a rating in excess of 40 percent requires evidence of ankylosis. The record does not show that the Veteran had ankylosis or fixation of the spine at any point during the claim period. None of the VA examiners found ankylosis of the spine, and treatment records are also silent for diagnosis of ankylosis. The Veteran has not reported that his spine is fixed in one position. Rather, during all range of motion evaluations, he was able to move his back in flexion, extension, lateral flexion, and rotation. Even considering functional effects of flare-ups and repeated use, the examiners found he would be able to move to 25 degrees of flexion and at least 5 degrees in all other directions. As such, a rating in excess of 40 percent is not available for limitation of motion or ankylosis.

The Board notes the Court's holding in Correia that examinations for disabilities rated based on limitation of motion should consider "active and passive motion, in weight-bearing and nonweight-bearing..." in accordance with 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016). The Board finds that because the back supports the weight of the upper torso and head, all the measurements of record reflect active, weight-bearing motion. Given this anatomical position of the thoracolumbar spine, there is no practical way to alleviate weight from the back to obtain non-weight-bearing range of motion. Additionally, the January 2021 examiner found that the Veteran would have the same passive range of motion as active range of motion, and the September 2021 examiner found that testing for passive range of motion would be unsafe for this Veteran. Accordingly, the Board finds remand for passive range of motion would not be helpful in the Veteran's pursuit for a higher rating, and the measurements of record accurately reflect his disability picture.

The Board has also considered the Diagnostic Codes for IVDS. While the evidence shows the Veteran has a diagnosis of IVDS beginning 2008, the evidence does not show incapacitating episodes requiring bed rest and care prescribed by a physician at the frequency required for higher ratings. The December 2015, May 2016, October 2016, June 2017, and September 2020 examiners specifically found the Veteran's disability did not require bed rest prescribed by a physician. The September 2021 examiner found the Veteran's IVDS physically prevented him from getting out of bed at least two weeks but less than four weeks in the prior 12 months, which equates to a 10 percent rating under the criteria for IVDS based on incapacitating episodes. 

More importantly, beginning August 2005, the Veteran receives separate ratings for radiculopathy in his lower extremities. These separate ratings were in place when he was diagnosed with IVDS in 2008. The rating criteria based on incapacitating episodes is an alternative to the rating criteria for musculoskeletal and neurological impairment. The Veteran is better served by the separate rating for his back plus those for his legs than he would be by one rating based on incapacitating episodes. Similarly, the criteria prior to the change in September 2002 specifically consider symptoms of sciatic neuropathy. Awarding the Veteran two ratings based the same symptom presentation would constitute impermissible pyramiding. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. Therefore, use of the earlier criteria would not be appropriate after the Veteran began to receive separate ratings for radiculopathy. 

Finally, the Board has considered whether the Veteran has any neurologic abnormalities associated with his lumbar spine disability aside from radiculopathy that could be rated separately. The evidence does not show any other neurologic abnormalities associated with the lumbar spine disability. The VA examinations and treatment records do not show neurologic abnormalities associated with the lumbar spine disability aside from radiculopathy. The Veteran has also not reported being diagnosed with neurologic abnormalities attributed to his lumbar spine disability. Therefore, additional separate ratings are not appropriate.

Accordingly, the criteria for an initial rating of 20 percent from July 6, 2001, to March 2, 2007, for a lumbar spine disability have been met, and the claim is granted.  The criteria for a 40 percent rating from March 2, 2007, to September 14, 2009, for a lumbar spine disability have been met, and the claim is granted.  The criteria for a 20 percent rating from September 14, 2009, to November 30, 2009, for a lumbar spine disability have been met, and the claim is granted.  The criteria for a rating in excess of 20 percent from November 30, 2009, to May 10, 2016, for a lumbar spine disability have not been met, and the claim is denied.  The criteria for a rating in excess of 40 percent from May 10, 2016, for a lumbar spine disability have not been met, and the claim is denied.

Right Lower Extremity Radiculopathy

The Veteran's right lower extremity radiculopathy is under Diagnostic Code 8520 for disabilities of the sciatic nerve. Disabilities affecting the sciatic nerve are assigned a 10 percent rating for mild, 20 percent for moderate, 40 percent for moderately severe, and 60 percent for severe incomplete paralysis, with marked muscular atrophy. Complete paralysis, defined as the foot dangles and drops, no active movement possible of muscles below the knee, and flexion of the knee weakened or lost, warrants an 80 percent rating. 38 C.F.R. § 4.124a, DC 8520.

During the December 2015 peripheral nerves examination, the examiner found the Veteran had full strength at the right knee and on ankle plantar flexion but reduced strength to 1/5 at ankle dorsiflexion. The Veteran had normal reflexes and sensation on the right leg except for decreased sensation on the foot/toes. The examiner classified the Veteran's disability as moderately severe incomplete paralysis of the sciatic nerve. On the December 2015 back examination, the examiner made similar findings of strength, reflexes, and sensation, which included strength as 1/5 on great toe extension and decreased sensation at the lower leg/ankle. The examiner also recorded symptoms of moderate constant and intermittent pain, moderate paresthesias/dysesthesias, and moderate numbness in the right lower extremity and classified the overall condition as moderate. 

The May 2016 examiner recorded severe constant pain, paresthesias/dysesthesias, and numbness in the right leg with 5/5 strength at the knee and 4/5 strength at ankle plantar flexion and dorsiflexion. The examiner noted right foot drop, no evidence of muscle atrophy, hyperactive reflexes without clonus, normal sensation at the upper leg and knee, and absent sensation at the lower leg, ankle, and foot. The examiner classified the condition as moderately severe. A July 2016 treatment record shows complaints of right foot weakness and foot drop with sensation to light touch/pin prick subjectively impaired at the right foot and great toe but otherwise grossly intact, and strength at right knee flexion as 4/5, right foot dorsiflexion as 3/5, and right foot plantar flexion 4/5. The October 2016 examiner measured full strength at the right hip, knee, and ankle plantar flexion, reduced strength to 4/5 at ankle dorsiflexion and toe extension, hyperactive reflexes without clonus, normal sensation at the thigh and knee, and decreased sensation at the lower leg/ankle and foot. The examiner recorded symptoms of moderate intermittent pain, paresthesias/dysesthesias, and numbness. The examiner classified the condition as moderate overall.

Severe incomplete paralysis is described to include marked muscular atrophy. None of the examiners found evidence of muscle atrophy, much less marked atrophy. While the Veteran had notable reduced strength on ankle dorsiflexion and toe extension, he maintained some strength in those positions and normal or slightly reduced strength at higher points in his leg. The Board notes that the reduced strength included right foot drop, which is discussed in the description of complete paralysis. However, there is no suggestion that the Veteran had complete paralysis of his sciatic nerve. None of the examinations or evaluations revealed complete paralysis. He also did not present with weakened movement of the knee or absent movement of the muscles below the knee. The Board finds further probative the examiners' descriptions of the Veteran's right lower extremity radiculopathy as moderate or moderately severe, rather than severe. The 40 percent rating for moderately severe incomplete paralysis of the sciatic nerve in the right lower extremity is most appropriate. The evidence is persuasively against finding severe incomplete or complete paralysis.

Accordingly, the criteria for a rating in excess of 40 percent from December 17, 2015, to June 19, 2017, for right lower extremity radiculopathy have not been met, and the claim is denied. 

 

Timothy Berryman

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A.P. Armstrong

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.