Citation Nr: 22014829 Decision Date: 03/15/22 Archive Date: 03/15/22 DOCKET NO. 15-26 742 DATE: March 15, 2022 ORDER An initial rating in excess of 10 percent for intervertebral disc syndrome (IVDS) with degenerative arthritis changes status post lumbar surgery prior to January 15, 2020, and a rating in excess of 40 percent thereafter is denied. An initial rating in excess of 10 percent for left lower extremity sciatica prior to January 15, 2020, is denied. A 20 percent disability rating, and no higher for left lower extremity sciatica beginning January 15, 2020, is granted. An initial 10 percent rating for a lumbar spine postsurgical scar is granted. FINDINGS OF FACT 1. Prior to January 15, 2020, the Veteran's lumbar spine disability manifested with functional loss due to painful motion. From January 15, 2020, the competent and credible evidence of record demonstrates at worst, forward flexion of the lumbar spine was limited to 30 degrees during flare-ups. 2. Prior to January 15, 2020, the Veteran's left lower extremity sciatica manifested as mild, incomplete paralysis; however, beginning January 15, 2020, the left lower extremity manifested as moderate, incomplete paralysis. 3. The Veteran's single lumbar surgical scar is intermittently painful, but is not unstable, deep, and does not cover an area of at least 12 square inches or result in functional impairment. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for IVDS with degenerative arthritis changes status post lumbar surgery prior to January 15, 2020, and a rating in excess of 40 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5242. 2. The criteria for an initial rating in excess of 10 percent for left lower extremity sciatica prior to January 15, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 3. The criteria for a 20 percent disability rating, and no higher for left lower extremity sciatica beginning January 15, 2020, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 4. The criteria for an initial 10 percent rating for post lumbar surgical scar have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, DC 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1988 to September 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript is of record. The issues on appeal were previously remanded in June 2019 for further development; there has been substantial compliance with remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating Disability ratings are determined by applying a schedule of reductions in earning capacity from specific injuries or a combination of injuries that is based upon the average impairment of earning capacities. 38 U.S.C. § 1155. Each disability must be viewed in relation to its entire history, with emphasis upon the limitations proportionate to the severity of the disabling condition. 38 C.F.R. § 4.1. Where there is a question as to which of the two disability evaluations is 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. 38 C.F.R. § 4.7. After careful consideration of the evidence of record, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). When rating the Veteran's service-connected disability, the entire medical history must be reviewed. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board must also fully consider the lay assertions of record. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (2016); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C. § 7104(a). When there is an approximate balance of 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 claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3 1. An initial rating in excess of 10 percent for IVDS with degenerative arthritis changes status post lumbar surgery prior to January 15, 2020, and a rating in excess of 40 percent thereafter is denied. The Veteran contends that he is entitled to a higher initial rating because his back disability is worse than rated. Prior to January 15, 2020 Service connection for intervertebral disc syndrome (IVDS) was granted in a March 2012 rating decision. The RO assigned an initial disability rating of 10 percent, effective August 26, 2010, pursuant to 38 C.F.R. § 4.71a, DC 5003-5242. 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. 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). Turning to the evidence of record, the Veteran underwent a VA examination in October 2011. He reported that he began experiencing constant back pain in 1988. He described the back pain as moderate and indicated that it can be exacerbated by physical activity, stress, prolonged sitting, laying down, and is relieved by rest. He reported limitation in walking because of his spine condition. He indicated that it took him two minutes to walk 100 to 150 feet. The Veteran reported symptoms of stiffness, fatigue, spasms, decreased motion, paresthesia and numbness. The Veteran indicated that in the past 12 months, his back disability did not result in any incapacitation. The examiner diagnosed the Veteran's back disability as IVDS with degenerative arthritis changes. On physical examination, the examiner noted that the Veteran's posture and gait were within normal limits. His walking was steady, and he required a cane for ambulation because of the low back. The examiner noted that there was no evidence of radiating pain on movement; muscle spasm was absent. Tenderness was not noted. Guarding and weakness was not revealed. Muscle tone and musculature were normal. Straight leg raising was negative bilaterally and Lasègue's sign was negative. There was no atrophy present in the limbs or ankylosis of the thoracolumbar spine. Range of motion revealed forward flexion limited to 80 degrees and the combined range of motion was 230 degrees. The examiner indicated that the joint function of the lumbar spine was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. The examiner also indicated that the inspection of the spine revealed normal head position with symmetry in appearance. There was symmetry of spinal motion with normal curves of the spine. An x-ray taken on the day of the examination revealed slight anterior wedging at L1 of unknown duration, otherwise unremarkable. The evidence of record persuasively weighs against a rating in excess of 10 percent for IVDS with degenerative arthritis changes. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he could not walk or stand for prolonged periods of time, would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. Significantly, the examiner indicated that the joint function of the lumbar spine was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. Therefore, even with consideration of functional impairment, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees. Additionally, as noted in the examination report, the Veteran did not have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Consideration has also been given to assigning a rating under the Formula for Rating IVDS Based on Incapacitating Episodes. However, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. Notably, the Veteran denied any incapacitation in the past 12 months at his October 2011 VA examination and contemporaneous treatment records do not demonstrate otherwise. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. From January 15, 2020 In a July 2020 rating decision, the RO increased the lumbar disability rating to 40 percent, effective January 15, 2020. A rating in excess of 40 percent from January 15, 2020, is not warranted. The Board notes that in the July 2020 corresponding code sheet, the Veteran's lumbar spine disability changed from diagnostic code 5242 to 5243; however, the criteria for rating as delineated earlier, remain the same. The Veteran was afforded a VA examination in January 2020. The Veteran's diagnosis of degenerative arthritis of the spine and IVDS were noted. His description of the impact from his back disability regarding his ability to perform occupational functioning and ordinary activity was "unable to move much, hurts to sit and stand. Difficult to do job." He reported that flare-ups of the back occur "everyday" are "severe" and are "continuous." His flare-ups were reportedly precipitated by "moving, standing, sitting, cannot sleep on back." The flare-ups were alleviated by "shifting positions." The Veteran's functional loss included his "inability to sit and stand; unable to write." The examiner noted that the Veteran had muscle spasm which resulted in abnormal gait or spine contour. There was no muscle atrophy reported or ankylosis. On initial range of motion testing, passive non-weight bearing, active non-weight bearing, and passive weight bearing, the Veteran's forward flexion was limited to 40 degrees and his combined range of motion was 135 degrees. The Veteran indicated that the abnormal range of motion contributed to functional loss in difficulty sitting, standing, walking for long periods, bending, squatting, and heavy lifting. Range of motion for repeated use over time revealed forward flexion limited to 35 degrees and a combined range of motion of 110 degrees. The Veteran indicated that pain caused functional loss. Although the examination was not conducted during a flare-up, the examiner was able to describe how the Veteran's pain significantly limited his functional ability with flare-ups. His forward flexion was estimated to be limited to 30 degrees and a combined range of motion was estimated as 80 degrees. Regarding the diagnosis of IVDS, the examiner indicated that although the Veteran had IVDS of the thoracolumbar spine, he was not prescribed bed rest by a physician in the past 12 months. Upon review of the evidence, the Board finds that a rating in excess of 40 percent from January 15, 2020, is not warranted. As seen in the VA examination report, at worst, the Veteran's forward flexion was limited to 30 degrees during flare-ups. A 50 percent rating requires there be evidence of unfavorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is not warranted because the Veteran does not have ankylosis of the thoracolumbar spine. The Veteran has already been granted service connection for his lower left extremity sciatica, associated with degenerative arthritis changes status post lumbar surgery. Thus, a separate rating for a neurological abnormality has already been considered. For the foregoing reasons, the evidence of record persuasively weighs against a rating in excess of 10 percent prior to January 15, 2020, and a rating in excess of 40 percent thereafter, for IVDS with degenerative arthritis changes. As such, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, No. 2020-2067, (Fed. Cir. 2021). 2. An initial rating in excess of 10 percent for left lower extremity sciatica prior to January 15, 2020, is denied. 3. A 20 percent disability rating, and no higher for left lower extremity sciatica beginning January 15, 2020, is granted. The Veteran contends that he is entitled to a higher initial rating because he experienced symptoms of tingling and numbness. The Veteran's left lower extremity sciatica is rated under 38 C.F.R. § 4.124a, DC 8620 for neuritis. Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123 Under the criteria for paralysis of the sciatic nerve DC 8520, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. 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 is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). Prior to January 15, 2020 The Veteran underwent a VA examination in October 2011. There, the Veteran reported symptoms of stiffness, fatigue, spasms, decreased motion, paresthesia and numbness as associated with his spinal condition. He indicated that he had weakness of the leg and foot. He denied any bowel or bladder problems and erectile dysfunction due to his spinal condition. The Veteran reported experiencing constant back pain that "travels to back lower leg." The examiner noted the Veteran's report of hospitalization in 1996 for a discectomy and that he "describes the residuals of multiple resolved sciatica." During the neurological portion of the exam, the examiner indicated that there was a sensory deficit of the left back of the thigh and left lateral leg. The left lower extremity reflexes revealed knee jerk 2+ and ankle jerk 2+ (normal). The lower extremities showed no signs of pathologic reflexes and the examination revealed normal cutaneous reflexes. The examiner indicated that the most likely peripheral nerve was the sciatic nerve. In a September 2011 lay statement discussing his back disability, the Veteran reported that his back "never fully recovered from those injuries and the pain and numbness that radiated down my leg prior to the surgeries persists to this day." In his March 2013 notice of disagreement, the Veteran stated that, "each of these conditions is worse than when I submitted my initial claim in 2010." In his July 2015 VA Form 9, the Veteran reported that the sensory deficit in the left thigh and leg "progressed to his foot and now pain radiates throughout the leg and foot." He described the pain as debilitating and stated that it "exacerbates my mobility issues and worsens my gait." Lastly, the Veteran stated that the issue was "no longer 'mild incomplete paralysis.'" A review of the medical evidence of record does not demonstrate that prior to January 15, 2020, the Veteran's left leg sciatica manifested in moderate pain. Indeed, the Veteran reported having moderate pain during his October 2011 VA examination; however, when read in context, it appears he was describing the level of his back pain as moderate as he went on to explain that it was "exacerbated by physical activity, stress and prolonged sitting, or laying down." Moreover, the Veteran's own statement implies that his left leg sciatica was accurately rated as "mild incomplete paralysis." This appears to align with the Veteran's June 2019 Board testimony where he indicates that he had symptoms of tingling and numbness in 2011 but "they have gotten a little bit worse" with the tingling occurring a little bit more and the numbness a lot more. Thus, upon review of the competent and credible contemporaneous evidence of record, the Board finds the evidence persuasively weighs against the Veteran's claim for a higher initial rating for left leg sciatica prior to January 15, 2020. An initial rating in excess of 10 percent prior to January 15, 2020, is denied. From January 15, 2020 Resolving all doubt in the Veteran's favor, from January 15, 2020, a 20 percent rating and no higher is warranted for his left leg sciatica. As noted above, during the appeal, the Veteran has asserted that his condition worsened and was "no longer mild incomplete paralysis." Pursuant to the Board's June 2019 remand, the Veteran was afforded a VA examination for peripheral nerves conditions in January 2020. There, he reiterated his medical history of onset regarding the back injury he sustained in service. On examination, he complained of numbness, tingling, and pain. The examiner indicated that the Veteran had symptoms attributable to peripheral nerve conditions such as constant moderate pain in the left lower extremity, along with severe paresthesias and/or dysesthesias and numbness. Muscle atrophy and trophic changes were not reported. On sensory testing, the examiner noted a decreased sensation for light touch in the left lower leg/ankle and foot/toes. The Veteran's gait was reported as abnormal, antalgic due to his back condition and lower extremity radiculopathy. Testing of the lower extremity nerves revealed that the Veteran had moderate incomplete paralysis in the left extremity affecting the sciatic nerve. Upon review of the evidence, the Board finds that from January 15, 2020, a 20 percent rating, and no higher is warranted for the Veteran's left leg sciatica. A higher rating is not warranted because the medical evidence of record does not reflect more severe symptoms that reasonably constitute a moderately severe disability. For instance, there were no trophic changes or muscle atrophy, sensation was only decreased but not absent to light touch, and while his gait may have been antalgic-this was partly due to his back pain. Finally, the examiner who conducted a physical examination and reviewed his clinical history opined that the systems were of moderate severity. This clinical assessment is probative. In sum, the evidence of record persuasively weighs against the Veteran's claim for an initial rating in excess of 10 percent for left leg sciatica prior to January 15, 2020, because it manifested in mild, but not moderate or severe, incomplete paralysis. However, resolving all doubt in the Veteran's favor, his left leg sciatica manifested in moderate, incomplete paralysis since January 15, 2020. Accordingly, a 20 percent disability rating is granted from January 15, 2020. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, No. 2020-2067, (Fed. Cir. 2021). 4. An initial 10 percent rating for a lumbar spine postsurgical scar is granted. Service connection for a lumbar spine surgery scar was granted in a March 2012 rating decision. The RO assigned an initial noncompensable disability rating, effective August 26, 2010, pursuant to 38 C.F.R. § 4.118, DC 7805. In a July 2020 rating decision, the RO increased the disability rating to 10 percent, effective January 15, 2020. The RO changed the diagnostic code to 7804. The Veteran contends that he is entitled to a higher rating for his post-surgical lumbar scar because it is painful. Scars are evaluated pursuant to Diagnostic Codes (DCs) 7800 - 7805. 38 C.F.R. § 4.118. VA amended the criteria for rating skin disabilities effective from August 13, 2018. As this appeal was pending on August 13, 2018, the revised criteria are applicable, but only for the period beginning August 13, 2018, if more favorable. However, DCs 7804 and 7805 were not changed by the August 13, 2018, amendments. The Veteran's post-surgical lumbar scar was originally rated under DC 7805. DC 7805 instructs that any disabling effect(s) not considered in a rating provided under diagnostic codes 7800-04 be evaluated under an appropriate diagnostic code. Under DC 7804, one or two scars that are unstable or painful scars warrants a 10 percent rating. Three or four scars that are unstable or painful scars warrants a 20 percent rating. Five or more scars that are unstable or painful warrants a 30 percent rating. 38 C.F.R. § 4.118. Note 1 to DC 7804 instructs that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. The Veteran was afforded a VA examination in October 2011. A well healed scar on the posterior side of the trunk, precisely located midline low back was identified and described as a residual of the Veteran's lumbar spine condition with surgery. The examiner noted that the superficial scar was linear and measured 6.5cm x 0.1cm. The scar was not painful on examination. There was no skin breakdown or underlying tissue damage. Inflammation was absent as was edema. There was no keloid formation. The scar was not disfiguring and did not limit the Veteran's motion. The examiner also noted that the Veteran, "reports the scar is not painful. He does not experience skin breakdown. [The Veteran] states the area around the scar is very sensitive and painful when touched. He does not experience any functional impairment due to the scar." Treatment records of evidence do not reflect complaints of a painful or unstable scar. The Veteran did not discuss his scar in his September 2011 lay statement, March 2013 notice of disagreement, or on his July 2015 substantive appeal form. The Veteran testified at his October 2018 Board hearing that his surgical scar was painful and that the pain was "back and forth." The Board remanded the issue in June 2019 for a VA examination to determine the severity of his disability. The Veteran was afforded a scar examination in January 2020. The examiner indicated that the Veteran had one painful scar on the posterior trunk, that was tender to palpation. The Veteran did not report any burn scars. During the evaluation of the Veteran's scar on the trunk and extremities, the examiner noted its location as midline of the lumbar spine. The scar measured at 7.5cm x 0.3 cm and did not result in limitation of function or motion. The examiner also indicated that the Veteran's scar was without adherence to underlying tissue. Based on the evidence of record, and resolving all reasonable doubt in the Veteran's favor, an initial 10 rating, but not higher, is warranted since the effective date of service connection pursuant to DC 7804. The evidence of record persuasively weighs against the assignment of a rating in excess of 10 percent under DC 7804 because the Veteran has a single scar that is painful. Higher ratings are warranted for three or more painful or unstable scars. A rating in excess of 10 percent is not warranted at any time during the pendency of the appeal under any other scar diagnostic code. The Veteran's post-surgical lumbar scar is not of the head, face, or neck, is not described as deep and nonlinear, or associated with underlying soft tissue damage. The Veteran's surgical scar is not a burn scar; therefore, DC 7800 is not applicable. Though it is reported as superficial, the surgical scar does not cover an area or areas of 144 square inches or greater. Moreover, the Veteran did not report that the scar was unstable or painful. Therefore, a compensable rating is not warranted under diagnostic codes 7800, 7801, 7802 with consideration of either the former or revised diagnostic criteria. A higher rating is not warranted under DC 7805 because there is no competent evidence showing his scar has resulted in additional limitation of function and no other disabling effects are reported by the Veteran to be present. In sum, an initial compensable rating of 10 percent is assigned for the post-surgical lumbar scar. A rating in excess of 10 percent is not warranted for any period since the effective date of the grant of service connection. 38 U.S.C. § 5107(b). D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Telamour, 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.