Citation Nr: 22016295 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 17-44 966 DATE: March 21, 2022 ORDER A schedular rating in excess of 20 percent for chronic lumbar strain with degenerative arthritis is denied. A schedular rating in excess of 20 percent for left lower extremity radiculopathy involving the sciatic nerve is denied. A schedular rating in excess of 20 percent for right lower extremity radiculopathy involving the sciatic nerve is denied. FINDINGS OF FACT 1. Throughout the period on appeal the Veteran's chronic lumbar strain with degenerative arthritis has been characterized by forward flexion greater than 30 degrees but not greater than 60 degrees; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour; no ankylosis; and no incapacitating episodes due to IVDS. 2. Throughout the period on appeal the Veteran's left lower extremity radiculopathy involving the sciatic nerve has been productive of moderate incomplete paralysis of the sciatic nerve with numbness, tingling, and pain. 3. Throughout the period on appeal the Veteran's right lower extremity radiculopathy involving the sciatic nerve has been productive of moderate incomplete paralysis of the sciatic nerve with numbness, tingling, and pain. CONCLUSIONS OF LAW 1. The criteria for a schedular rating in excess of 20 percent for chronic lumbar strain with degenerative arthritis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.1, 4.7, 4.71a, Diagnostic Codes (DCs) 5237, 5243. 2. The criteria for a schedular rating in excess of 20 percent for left lower extremity radiculopathy involving the sciatic nerve have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.1, 4.3, 4.7, 4.124a, DC 8520. 3. The criteria for a schedular rating in excess of 20 percent for right lower extremity radiculopathy involving the sciatic nerve have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.159, 3.400, 4.1, 4.3, 4.7, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from June 1976 to June 1979. In a February 2020 decision, the Board remanded these matters to clarify whether the Veteran's claims were withdrawn, as was noted in a July 2012 memoranda from the Regional Office (RO). Subsequently, in an April 2020 supplemental statement of the case (SSOC), the RO determined that a written withdrawal of these matters had not been received by VA, and the issues therefore remain on appeal. In an October 2021 decision, the Board remanded these matters to obtain relevant outstanding private treatment records and to obtain VA examinations regarding the severity of the Veteran's disabilities. The appeal has since been returned to Board for review. For the reasons indicated in the discussion below, the agency of original jurisdiction (AOJ) complied with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Although the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where evidence indicates that the degree of disability increased or decreased during the appeal period, "staged" ratings may be assigned for separate periods of time based on facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999), Hart v. Mansfield, 21 Vet. App. 505 (2007). For musculoskeletal disabilities, a higher rating is based on greater limitation of motion due to pain on use, including during flare-ups. 38 C.F.R. §§ 4.10, 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, and therefore, actually painful, unstable, or malaligned joints, due to healed injury, are as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Lumbar Spine For the period prior to June 13, 2019, the Veteran was assigned a 20 percent rating under 38 C.F.R. § 4.71a, DC 5237, for chronic lumbar strain with degenerative arthritis; and, for the period thereafter, the Veteran is presently assigned a 20 percent rating under 38 C.F.R. § 4.71a, DC 5243 for invertebral disc disease (IVDS). A rating of 10 percent under DC 5237 is warranted when the evidence demonstrates: forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; 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. 38 C.F.R. § 4.71a, DC 5237. A rating of 20 percent is warranted when the evidence demonstrates: forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine not greater than 120 degrees; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A rating of 40 percent is warranted when the evidence demonstrates: forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A rating of 50 percent is warranted when the evidence demonstrates: unfavorable ankylosis of the entire thoracolumbar spine. Id. Additionally, spine disabilities based on IVDS with incapacitating episodes may be rated under 38 C.F.R. § 4.71a, DC 5243. A rating of under DC 5243 is warranted when the evidence demonstrates: incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months (10 percent); incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months (20 percent); incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months (40 percent); or incapacitating episodes having a total duration of at least 6 weeks during the past 12 months (60 percent maximum). 38 C.F.R. § 4.71a, DC 5243. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, if the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. For purposes of the Veteran's disability, however, the rating criteria did not change. The Board finds that a rating in excess of 20 percent for chronic lumbar strain with arthritis not warranted. In a January 2012 VA examination regarding the Veteran's lumbar spine disability, he reported flare-ups that require him to lie down and take pain medication. The examiner diagnosed degenerative arthritis of the lumbar spine and IVDS. The examiner documented that the Veteran's forward flexion of the thoracolumbar spine was limited to 70 degrees with painful motion beginning at 15 degrees; extension was limited to 5 degrees with painful motion beginning at 5 degrees; right lateral flexion was limited to 15 degrees with painful motion beginning at 10 degrees; left lateral flexion was limited to 15 degrees with painful motion beginning at 10 degrees; right lateral rotation was limited to 15 degrees with painful motion beginning at 10 degrees; and left lateral rotation was limited to 15 degrees with painful motion beginning at 10 degrees. The examiner documented no loss of range of motion after repetitive testing. The examiner documented that the Veteran's functional loss involved less movement than normal and pain on movement. The examiner determined that the Veteran had localized tenderness as well as guarding and muscle spasm resulting in abnormal gait. The examiner also noted that the Veteran did not have any incapacitating episodes due to IVDS within the past 12 months. In a November 2017 VA examination regarding the Veteran's lumbar spine disability, he reported flare-ups with pain throughout the past year and pain with prolonged walking, turning, and toileting. He also reported undergoing lumbar spine fusion surgery in February 2017, and the examiner noted that the Veteran was up the same day following fusion surgery. The examiner diagnosed lumbar strain and IVDS. The examiner documented that the Veteran's forward flexion of the thoracolumbar spine was limited to 60 degrees, extension was limited to 10 degrees, right lateral flexion was limited to 20 degrees, left lateral flexion was limited to 20 degrees, right lateral rotation was limited to 20 degrees, and left lateral rotation was limited to 20 degrees. The examiner documented no loss of range of motion after repetitive testing. The examiner determined that the Veteran did not have guarding and muscle spasm resulting in abnormal gait. The examiner also noted that the Veteran did not have any ankylosis or incapacitating episodes due to IVDS within the past 12 months. In a June 2019 VA examination regarding his lumbar spine disability, the Veteran reported experiencing flare-ups with exertion that intensifies pain. The examiner diagnosed lumbosacral strain and IVDS. The examiner documented that the Veteran's forward flexion of the thoracolumbar spine was limited to 75 degrees, extension was limited to 25 degrees, right lateral flexion was limited to 20 degrees, left lateral flexion was limited to 20 degrees, right lateral rotation was limited to 20 degrees, and left lateral rotation was limited to 20 degrees. The examiner documented that the Veteran experienced additional functional loss with observed repetitive use, repeated use over time, and during flare-ups, with the most significant functional loss due to flare-ups causing range of motion to be further limited to flexion of the thoracolumbar spine at 40 degrees, extension at 15 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. Lastly, the examiner determined that the Veteran does not have any guarding or muscle spasms resulting in abnormal gait or spinal contour, does not have any ankylosis of the spine, and has not experienced any incapacitating episodes due to IVDS within the past 12 months. In a do not reflect findings indicative of greater disability than set out above. the testing and findings necessary to assign a disability rating. VA examination regarding his lumbar spine disability, the Veteran reported experiencing flare-ups five to ten times each day that are precipitated by sitting or standing for prolonged periods, laying down, bending, or lifting. The examiner diagnosed degenerative arthritis, lumbosacral strain, and IVDS. The examiner documented that the Veteran's forward flexion of the thoracolumbar spine was limited to 60 degrees and range of motion in all other directions was limited to 20 degrees. The examiner documented that the Veteran experienced additional functional loss with observed repetitive use, repeated use over time, and during flare-ups, with the most significant functional loss due to flare-ups causing range of motion to be further limited to flexion of the thoracolumbar spine at 45 degrees and range of motion in all other directions at 10 degrees. Lastly, the examiner determined that the Veteran does not have any guarding or muscle spasms resulting in abnormal gait or spinal contour, does not have any ankylosis of the spine, and has not experienced any incapacitating episodes due to IVDS within the past 12 months. Additionally, the Veteran's private treatment records indicate complaints and treatment for chronic low back pain. In January 2017, although the physician noted no change in activity level, the Veteran complained of worsening back pain. On February 21, 2017, he underwent lumbar spine fusion surgery, which was documented as being tolerated well with no complications. On February 24, 2017, he transferred to a rehabilitation hospital until discharge on March 3, 2017. During an April 2017 post-operative visit, the Veteran was documented as having no surgical complications as well as improved symptoms compared to his pre-operative level. He was also noted as attending outpatient physical therapy, performing at-home exercises, and having good range of motion of the lumbar spine. In a May 2017 post-operative visit, his incisions were noted as well-healed. In an August 2017 post-operative visit, he was noted as experiencing continuing pain but having no serious complications with good range of motion of the lumbar spine. Further, the Veteran's remaining private and VA treatment records indicate complaints and treatment for chronic low back pain; however, the remaining private and VA treatment records do not indicate the testing and findings necessary to assign a disability rating. The Board finds that throughout the period on appeal the medical evidence demonstrates that a rating in excess of 20 percent is not warranted for the Veteran's chronic lumbar strain with degenerative arthritis. The findings of the January 2012 VA examination demonstrate the Veteran experienced muscle spasm or guarding resulting in abnormal gait or abnormal spinal contour, which is specifically contemplated by the 20 percent rating criteria under DC 5237. The findings of the November 2017, June 2019, and December 2021 VA examinations demonstrate that when considering additional functional loss during observed repetitive use, repeated use over time, and flare-ups, the Veteran experienced forward flexion greater than 30 degrees but not greater than 60 degrees, as contemplated by the 20 percent rating criteria under DC 5237. The medical evidence of record does not demonstrate that the Veteran experienced any ankylosis or forward flexion of the thoracolumbar spine limited to 30 degrees or less, as required to warrant a 40 percent rating under DC 5237. Additionally, a higher rating is not warranted as the findings do not indicate that the Veteran experienced any incapacitating episodes due to IVDS, as required to warrant a higher rating under DC 5243. Accordingly, the Board finds that the evidence persuasively weighs against a rating in excess of 20 percent for the Veteran's chronic lumbar strain with degenerative arthritis. Therefore, the appeal in this regard is denied. Bilateral Lower Extremity Radiculopathy The Veteran's impairment of the bilateral lower extremities involves the sciatic nerve and is due to his service-connected chronic lumbar strain with degenerative arthritis. In rating diseases of the peripheral nerves, such as the sciatic nerve, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Ratings regarding impairment involving the sciatic nerve are rated under 38 C.F.R. § 4.124a, DC 8520. Under DC 8520, ratings are assigned for: Mild incomplete paralysis (10 percent); Moderate incomplete paralysis (20 percent); Moderately severe incomplete paralysis (40 percent); Severe incomplete paralysis with marked muscular atrophy (60 percent); or Complete paralysis; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost (80 percent maximum). 38 C.F.R. § 4.124a, DC 8520. Words such as "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Use of terminology such as "severe" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. VA has generally considered that the mild level of evaluation would be more reasonably assigned when sensory symptoms are recurrent but not continuous, assigned a lower medical grade reflecting less impairment, and/or affecting a smaller area in the nerve distribution. The moderate level of evaluation would be reserved for the most significant and disabling cases of sensory-only involvement. These are cases where the sensory symptoms are continuously assigned a higher medical grade reflecting greater impairment and/or affecting a larger area in the nerve distribution. This provision does not mean that if there is any impairment that is non-sensory (or involves a non-sensory component) such as a reflex abnormality, weakness or muscle atrophy, the disability must be evaluated as greater than moderate. Significant and widespread sensory impairment may potentially indicate the same or even more disability than a case involving a minimally reduced or increased reflex or minimally reduced strength. The Board finds that a rating in excess of 20 percent for radiculopathy involving the sciatic nerve, for each of the bilateral lower extremities, is not warranted. In a January 2012 VA examination regarding the Veteran's chronic lumbar strain with radiculopathy involving the sciatic nerve, the Veteran reported pain radiating from the low back to the bilateral lower extremities. The examiner assessed the severity of the Veteran's radiculopathy involving the sciatic nerve of the bilateral lower extremities. Regarding the right lower extremity, the examiner documented that the Veteran's sensation to light touch of was normal; that reflex testing was normal; and that motor function was within normal limits. The examiner determined the severity level of the Veteran's right lower extremity radiculopathy involving the sciatic nerve to be severe incomplete paralysis. Regarding the left lower extremity, the examiner documented that the Veteran experienced severe paresthesias and/or dysesthesias; that sensation to light touch of was normal; that reflex testing was normal; and that motor function was within normal limits. The examiner determined the severity level of the Veteran's left lower extremity radiculopathy involving the sciatic nerve to be severe incomplete paralysis. The examiner also determined that the Veteran did not experience any muscle atrophy of the bilateral lower extremities. The Board concludes that the findings of the January 2012 VA examination do not demonstrate that a rating in excess of 20 percent is warranted for radiculopathy involving the sciatic nerve of the bilateral lower extremities. Although the examiner characterized the severity level of the Veteran's radiculopathy of the bilateral lower extremities involving the sciatic nerve to be severe incomplete paralysis, the examiner also documented only one symptom of radiculopathy, which was severe paresthesias and/or dysesthesias of the left lower extremity. Further, the examiner determined that sensory, motor function, and reflex testing were normal in the bilateral lower extremities and determined that the Veteran did not experience any muscle atrophy. Therefore, as the examiner did not document severe continuous symptoms of radiculopathy, determined that the Veteran did not experience any muscle atrophy, and determined the sensory, motor function, and reflex testing were normal, the Board concludes that these findings are more consistent with a mild level of impairment. In an August 2017 VA examination, the examiner assessed the severity of the Veteran's radiculopathy involving the sciatic nerve of the bilateral lower extremities. The Veteran reported that he could only walk short distances due to his back pain and radiating pain in the bilateral lower extremities. The Veteran also stated that his recent spine surgery did not improve his leg pain. Regarding the right lower extremity, the examiner documented that the Veteran experienced no constant pain, severe intermittent pain, no numbness, and moderate paresthesias and/or dysesthesias; that sensation to light touch of was normal; that reflex testing was normal; and that muscle strength testing was normal. The examiner determined the severity level of the Veteran's right lower extremity radiculopathy involving the sciatic nerve to be moderately severe incomplete paralysis. Regarding the left lower extremity, the examiner documented that the Veteran experienced no constant pain, moderate intermittent pain, no numbness, and mild paresthesias and/or dysesthesias; that sensation to light touch of was normal; that reflex testing was normal; and that muscle strength testing was normal. The examiner determined the severity level of the Veteran's left lower extremity radiculopathy involving the sciatic nerve to be moderate incomplete paralysis. The examiner also determined that the Veteran did not experience any muscle atrophy of the bilateral lower extremities. The Board concludes that the findings of the August 2017 VA examination do not demonstrate that a rating in excess of 20 percent is warranted for radiculopathy involving the sciatic nerve of the bilateral lower extremities. The examiner determined that Veteran's symptoms of radiculopathy of the right lower extremity included severe intermittent pain and moderate paresthesias and/or dysesthesias and symptoms of radiculopathy of the left lower extremity included moderate intermittent pain and mild paresthesias and/or dysesthesias. Further, the examiner determined that sensory, muscle strength, and reflex testing were normal in the bilateral lower extremities. Therefore, as the examiner documented one severe recurrent, but not continuous, symptom of radiculopathy with the remaining symptoms characterized as mild or moderate, and the sensory, muscle strength, and reflex testing were normal, the Board concludes that these findings are consistent with a mild to moderate level of impairment. In a November 2017 VA examination regarding the Veteran's chronic lumbar strain with radiculopathy involving the sciatic nerve, he reported pain radiating into the bilateral lower extremities with numbness and weakness. The examiner assessed the severity of the Veteran's radiculopathy involving the sciatic nerve of the bilateral lower extremities. The examiner documented that the Veteran experienced no constant pain, moderate intermittent pain, moderate numbness, and moderate paresthesias and/or dysesthesias; that sensation to light touch of was normal; that reflex testing was normal in the ankles and absent in the knees; and that muscle strength testing was normal. The examiner determined the severity level of the Veteran's radiculopathy of the bilateral lower extremities involving the sciatic nerve to be moderate incomplete paralysis. The examiner also determined that the Veteran did not experience any muscle atrophy of the bilateral lower extremities. The Board concludes that the findings of the November 2017 VA examination do not demonstrate that a rating in excess of 20 percent is warranted for radiculopathy involving the sciatic nerve of the bilateral lower extremities. The examiner determined that Veteran's symptoms of radiculopathy of the bilateral lower extremities included moderate intermittent pain, moderate numbness, and moderate paresthesias and/or dysesthesias. Further, the examiner determined that that the sensory and muscle strength testing were normal and that the reflex testing was normal in the ankles and absent in the knees. Therefore, as the symptoms of radiculopathy were characterized as moderate and the sensory, muscle strength, and reflex testing were predominantly normal, the Board concludes that these findings are consistent with a moderate level of impairment. In a December 2021 VA examination, the examiner assessed the severity of the Veteran's radiculopathy involving the sciatic nerve of the bilateral lower extremities. The examiner documented that the Veteran experienced no constant pain, no intermittent pain, mild numbness, and mild paresthesias and/or dysesthesias; that sensation to light touch of was normal; that reflex testing was normal; and that muscle strength testing was normal. The examiner determined the severity level of the Veteran's radiculopathy of the bilateral lower extremities involving the sciatic nerve to be mild incomplete paralysis. The examiner also determined that the Veteran did not experience any muscle atrophy of the bilateral lower extremities. The Board concludes that the findings of the December 2021 VA examination do not demonstrate that a rating in excess of 20 percent is warranted for radiculopathy involving the sciatic nerve of the bilateral lower extremities. The examiner determined that Veteran's symptoms of radiculopathy of the bilateral lower extremities included mild numbness, and mild paresthesias and/or dysesthesias. Further, the examiner determined that sensory, muscle strength, and reflex testing were normal in the bilateral lower extremities. Therefore, as the symptoms of radiculopathy were characterized as mild and the sensory, muscle strength, and reflex testing were normal, the Board concludes that these findings are consistent with a mild level of impairment. Additionally, the Board notes that the Veteran's private and VA treatment records indicate complaints and treatment regarding radiculopathy of the bilateral lower extremities; however, the private and VA treatment records do not reflect findings indicative of greater disability than set out above. (Continued on the next page) In summary, the Board finds that throughout the period on appeal the evidence establishes that the Veteran's radiculopathy of the bilateral lower extremities involving the sciatic nerve is characterized as mild to moderate, and the evidence has not been interpreted by the Board to be characterized as moderately severe, as required to warrant a higher rating under DC 8520. Accordingly, the Board finds that the evidence persuasively weighs against a rating in excess of 20 percent for left lower extremity radiculopathy involving the sciatic nerve, and a rating in excess of 20 percent for right lower extremity radiculopathy involving the sciatic nerve. Therefore, the appeal in this regard is denied. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Page-Nelson, 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.