Citation Nr: 22011309 Decision Date: 02/28/22 Archive Date: 02/28/22 DOCKET NO. 16-12 954 DATE: February 28, 2022 ORDER A disability rating in excess of 40 percent for a lumbar spine disorder is denied. A 40 percent rating for right lower extremity (RLE) sciatic nerve radiculopathy is granted, subject to the rules and regulations governing the award of monetary benefits. A 40 percent rating for left lower extremity (LLE) sciatic nerve radiculopathy is granted, subject to the rules and regulations governing the award of monetary benefits. A 30 percent rating, from June 23, 2020, for RLE femoral nerve radiculopathy is granted, subject to the rules and regulations governing the award of monetary benefits. A 30 percent rating, from June 23, 2020, for LLE femoral nerve radiculopathy is granted, subject to the rules and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. The Veteran's service-connected lumbar spine disorder has not been manifested by unfavorable ankylosis of the entire thoracolumbar spine or symptomatology commensurate to unfavorable ankylosis of the entire thoracolumbar spine. 2. The evidence is at least in equipoise as to whether the Veteran's RLE sciatic nerve radiculopathy has been manifested by moderately severe symptomatology, without evidence of marked atrophy. 3. The evidence is at least in equipoise as to whether the Veteran's LLE sciatic nerve radiculopathy has been manifested by moderately severe symptomatology, without evidence of marked atrophy. 4. For the period from June 23, 2020, the evidence is at least in equipoise as to whether the Veteran's RLE femoral nerve radiculopathy has been manifested by severe symptomatology, without evidence of complete paralysis of the quadriceps extensor muscles. 5. For the period from June 23, 2020, the evidence is at least in equipoise as to whether the Veteran's LLE femoral nerve radiculopathy has been manifested by severe symptomatology, without evidence of complete paralysis of the quadriceps extensor muscles. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 40 percent for a lumbar spine disorder have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § 4.1, 4.2, 4.7, 4.71a, Diagnostic Code (DC) 5237. 2. The criteria for a 40 percent rating, but no higher, for RLE sciatic nerve radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, DC 8520. 3. The criteria for a 40 percent rating, but no higher, for LLE sciatic nerve radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, DC 8520. 4. For the period from June 23, 2020, the criteria for a 30 percent rating, but no higher, for RLE femoral nerve radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, DC 8526. 5. For the period from June 23, 2020, the criteria for a 30 percent rating, but no higher, for LLE femoral nerve radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, DC 8526. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1987 to July 1991. In July 2019, a videoconference hearing was held before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. In October 2019, the Board remanded the current claim for additional development. Entitlement to an increased disability rating for a lumbar spine disorder. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4. 40. It is important that when evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. § 4. 40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45. It is the intent of the schedule to recognize painful motion with joint or periarticular pathology as productive of disability. It is also the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The Board must also 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 evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39- 40 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit-of-the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran's service-connected lumbar spine disorder is currently evaluated under Diagnostic Code 5237 for a lumbosacral strain. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. VA regulations provide spine disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, whichever would result in a higher rating. 38 C.F.R. § 4.71a. Under the General Rating Formula, a 40 percent rating is warranted for forward flexion of the thoracolumbar spine 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 rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. Unfavorable ankylosis is a condition in which the entire thoracolumbar spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of 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. 38 C.F.R. § 4.71a, DC 5237, Note (2). Under the Formula for Rating IVDS Based on Incapacitating Episodes, a 40 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months and a higher 60 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least six weeks during the past 12 months. Id. [An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bedrest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Note 1 following Formula for Rating IVDS Based on Incapacitating Episodes.] In January 2015, the Veteran underwent a VA examination to evaluate his lumbar spine disorder. The Veteran reported that he had difficulty with prolonged sitting, standing, walking, and repeated bending/lifting. The examiner diagnosed degenerative arthritis of the lumbar spine. Range of motion testing showed flexion at 10 degrees, extension at 10 degrees, right lateral flexion at 20 degrees, left lateral flexion at 20 degrees, right lateral rotation at 30 degrees, and left lateral rotation at 30 degrees. The examiner indicated that these measurements were not likely to be an accurate estimate of actual range of motion because the Veteran did not want to do forward flexion or extension for fear of pain in the back. The examiner noted, however, that during other movements, the Veteran appeared to have more back flexion to approximately 40 to 50 degrees. There was no additional range of motion loss on repetitive use testing. Pain was noted on examination and caused functional loss in all ranges. There was no evidence of pain with weight bearing. There was objective evidence of localized tenderness or pain on palpation. The examiner indicated that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time and pain significantly limited functional ability with repeated use over a period of time. The examiner indicated, however, that she was not able to describe in terms of additional range of motion loss. The Veteran did not report flareups. There was guarding and muscle spasms that did not result in abnormal spinal contour or gait. There was no ankylosis and no muscle atrophy. The Veteran was found to have IVDS and, although he did not have prescribed bedrest, he indicated that he had 2 weeks in October where he was on bedrest for his back pain. The Veteran utilized a brace constantly for ambulation. The Veteran had radiculopathy associated with his lumbar spine disorder that caused bilateral lower extremity severe constant pain and moderate paresthesias. The examiner characterized the Veteran's radiculopathy as mild. The examiner indicated that the Veteran's chronic back pain caused impairment with prolonged standing/walking and repeated bending/lifting and that the Veteran would be able to perform sedentary work if he was allowed to change positions as needed. On June 23, 2020, the Veteran most recently underwent a VA examination to evaluate his lumbar spine disorder. The Veteran reported that he had constant pain and flareups twice a week that lasted all day and he could not get out of bed. He also reported that his back constantly locked up and he was unable to move, and his back pain was aggravated by bending even slightly. The examiner diagnosed IVDS, degenerative joint disease, and radiculopathy. Range of motion testing showed flexion at 10 degrees, extension at 5 degrees, right lateral flexion at 10 degrees, left lateral flexion at 10 degrees, right lateral rotation at 10 degrees, and left lateral rotation at 10 degrees. Pain was noted on examination on all ranges of motion and resulted in/caused functional loss. There was objective evidence of localized tenderness or pain on palpation. There was evidence of pain with weight bearing. There was additional range of motion loss documented on repetitive use testing as follows: flexion at 5 degrees, extension at 5 degrees, right lateral flexion at 10 degrees, left lateral flexion at 10 degrees, right lateral rotation at 10 degrees, and left lateral rotation at 10 degrees. The examiner indicated that pain, weakness, fatigability and incoordination significantly limited functional ability with flare ups and with repetitive use over time and found additional loss of range of motion due to flare-ups and/or repetitive use over time with, at most, flexion at 5 degrees, extension at 5 degrees, right lateral flexion at 5 degrees, left lateral flexion at 5 degrees, right lateral rotation at 5 degrees, and left lateral rotation at 5 degrees. The examiner indicated that there was guarding or muscle spasm resulting in abnormal gait or abnormal spine contour. There was decreased muscle strength, decreased sensation, no ankylosis, and no muscle atrophy. The examiner documented radiculopathy of the bilateral lower extremities consisting of moderate constant pain and severe intermittent pain, paresthesias, and numbness. The examiner indicated that the Veteran had nerve root involvement of the femoral and sciatic nerves and generally characterized the Veteran's radiculopathy as severe. The Veteran was found to have IVDS with no episodes of acute signs and symptoms that required bed rest prescribed by a physician in the past 12 months. The Veteran utilized a brace, cane, and walker for ambulation. The examiner indicated that the Veteran should avoid tasks that required extensive walking and should avoid tasks that required him to sit for greater than one hour at a time without taking breaks. The examiner indicated the Veteran would have difficulty bending, lifting/carrying more than 10 pounds, pushing/pulling more than 10 pounds, sitting/driving more than 20 to 30 minutes, and climbing one flight of stairs. VA treatment records and various lay statements document the Veteran's continuous reports for lumbar spine pain, with sciatic nerve involvement and limited mobility. See April and May 2016 Buddy Statements and July 2019 Board Hearing Transcript. In light of the evidence above and the governing legal authority, the Board finds that a higher rating is not warranted for the Veteran's lumbar spine disorder. Namely, the record does not show that the Veteran has unfavorable ankylosis of the entire thoracolumbar spine or symptoms commensurate to unfavorable ankylosis of the entire thoracolumbar spine at any time during the appeal period (i.e., the criteria for a higher 50 percent rating). As indicated above, although the Veteran indicated he was unable to move his back, the evidence shows that he at least had slight range of motion (to 5 degrees) in all ranges and there was no evidence the Veteran's thoracolumbar spine was fixed in flexion or extension (i.e., unfavorable ankylosis). There was also no evidence to show that the Veteran's IVDS resulted in incapacitating episodes having a total duration of at least 6 weeks during the past 12 months (i.e., the criteria for a higher 60 percent rating). Accordingly, a higher rating is not warranted for the service-connected lumbar spine disorder. The Board acknowledges that the VA examinations of the Veteran's lumbar spine must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 38 C.F.R. § 4.59; Correia v. McDonald, 28 Vet. App. 158 (2016). The Board has also considered the United States Court of Appeals for Veterans' Claims (Court's) holding in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), addressing 38 C.F.R. § 4. 40, which states that a VA examiner must "express an opinion on whether pain could significantly limit functional ability" and the examiner's determination in such 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." In light of these requirements, the Board has carefully considered the VA examinations of record and whether they complied with Correia and Sharp. The Board finds that the most recent June 2020 VA examination complies with these requirements. Moreover, to the extent that the examination findings of record relative to the lumbar spine may not be completely in compliance with Correia and/or Sharp, the Board finds that remand for additional examination would serve no useful purpose. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). In that regard, the Veteran is in receipt of at least a 40 percent rating for the entirety of the appeal period and a rating in excess of 40 percent for the lumbar spine is based on a finding of unfavorable ankylosis of the entire thoracolumbar spine and not an assessment of range of motion findings. Likewise, a remand to obtain a current examination that complies with Correia and Sharp would not be useful. Pursuant to Note (1) of the General Rating Formula, associated neurological abnormalities are considered to be part and parcel of the Veteran's lumbar spine disorder. The Veteran is currently assigned ratings under DC 8520 for the sciatic nerve and DC 8526 for the femoral nerve. Under DC 8520, for the sciatic nerve a 10 percent disability rating is assigned for mild, incomplete paralysis, a 20 percent disability rating is assigned for moderate, incomplete paralysis, a 40 percent disability rating is assigned for moderately severe, incomplete paralysis, a 60 percent rating is assigned for severe, incomplete paralysis with marked muscular atrophy. Under DC 8526, for the femoral nerve, a 20 percent rating is assigned for moderate incomplete paralysis, a 30 percent rating is assigned for severe incomplete paralysis; and a maximum 40 percent rating is assigned for complete paralysis of the quadriceps extensor muscles. During the pendency of the appeal, the agency of original jurisdiction (AOJ) granted entitlement to a higher disability rating for left lower extremity (LLE) and right lower extremity (RLE) sciatic nerve radiculopathy and assigned 20 percent ratings pursuant to DC 8520, effective June 23, 2020, based on evidence of moderate symptomatology. The AOJ determined that prior to June 23, 2020 the Veteran's treatment records did not show the criteria for an increased evaluation. The AOJ also granted service connection for LLE and RLE femoral nerve radiculopathy with 20 percent ratings, effective June 23, 2020, based on symptoms of moderate incomplete paralysis. In spite of the AOJ's determination, however, the Board finds that, throughout the entirety of the appeal period, the evidence is at least in equipoise as to whether the criteria for higher 40 percent ratings for LLE and RLE sciatic nerve radiculopathy have been met. In that regard, during both the January 2015 and June 2020 VA examinations, the Veteran demonstrated LLE and RLE radiculopathy with severe symptomatology. Accordingly, entitlement to 40 percent ratings for LLE and RLE sciatic nerve radiculopathy are warranted. Higher 60 percent ratings require evidence of severe incomplete paralysis with marked muscular atrophy. This has not been shown. The Board also finds that, for the period from June 23, 2020, entitlement to higher 30 percent ratings is warranted for LLE and RLE femoral nerve radiculopathy. As indicated above, the VA examination conducted on June 23, 2020 documented severe symptomatology associated with the Veteran's femoral nerve. Accordingly, entitlement to 30 percent ratings for LLE and RLE femoral nerve radiculopathy are warranted. Higher 40 percent ratings require evidence of complete paralysis of the quadriceps extensor muscles. This has not been shown. It is also not shown that prior to June 23, 2020, the Veteran demonstrated symptoms associated with femoral nerve radiculopathy. Accordingly, as noted, the higher 30 percent ratings for LLE and RLE femoral nerve radiculopathy are assigned from June 23, 2020. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Metzner, Paul 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.