Citation Nr: 22016311 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 14-19 690 DATE: March 21, 2022 ORDER From February 10, 2012, to October 15, 2018, a rating of 20 percent, but no higher, for lumbar strain with degenerative disc disease (hereafter back disability) is granted. From October 16, 2018, a rating of 40 percent, but no higher, for a back disability is granted. From January 5, 2018, a rating of 10 percent, but no higher, for radiculopathy of the right lower extremity (sciatic nerve), is granted; from July 9, 2021 a rating of 20 percent, but no higher, is granted. From January 5, 2018, a rating of 10 percent, but no higher, for radiculopathy of the left lower extremity (sciatic nerve), is granted; from July 9, 2021, a rating of 20 percent, but no higher, is granted. From July 9, 2021, a rating of 20 percent, but no higher, for radiculopathy of the right lower extremity (femoral nerve), is granted. From July 9, 2021, a rating of 20 percent, but no higher, for radiculopathy of the left lower extremity (femoral nerve), is granted. From September 20, 2018, special monthly compensation (SMC) at the housebound rate is granted. FINDINGS OF FACT 1. From February 10, 2012 to October 15, 2018, the Veteran's back disability more closely approximated forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; there is no evidence of ankylosis of the thoracolumbar spine. 2. From October 16, 2018, the Veteran's back disability more closely approximated forward flexion of the thoracolumbar spine limited to 30 degrees or less; there is no evidence of ankylosis of the thoracolumbar spine. 3. From January 5, 2018, the Veteran's radiculopathy of the right lower extremity (sciatic nerve) has been manifested by no more than slight incomplete paralysis; from July 9, 2021, it has been manifested by no more than moderate incomplete paralysis. 4. From January 5, 2018, the Veteran's radiculopathy of the left lower extremity (sciatic nerve) has been manifested by no more than slight incomplete paralysis; from July 9, 2021, it has been manifested by no more than moderate incomplete paralysis. 5. From July 9, 2021, the Veteran's radiculopathy of the right lower extremity (femoral nerve) has been manifested by no more than moderate incomplete paralysis. 6. From July 9, 2021, the Veteran's radiculopathy of the left lower extremity (femoral nerve) has been manifested by no more than moderate incomplete paralysis. 7. From September 20, 2018, the Veteran has had additional service-connected disabilities independently ratable at 60 percent or more, separate and distinct from his total rating for posttraumatic stress disorder (PTSD). CONCLUSIONS OF LAW 1. From February 10, 2012 to October 15, 2018, the criteria for a rating of 20 percent, but no higher, for a back disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237. 2. From October 16, 2018, the criteria for a rating of 40 percent, but no higher, for a back disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237. 3. From January 5, 2018, the criteria for a disability rating of 10 percent, but no higher, for radiculopathy of the right lower extremity (sciatic nerve) are met; from July 9, 2021, the criteria for a 20 percent rating, but no higher, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC) 8520. 4. From January 5, 2018, the criteria for a rating of 10 percent, but no higher, for radiculopathy of the left lower extremity (sciatic nerve) are met; from July 9, 2021, the criteria for a 20 percent rating, but no higher, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC) 8520. 5. From July 9, 2021, the criteria for a rating of 20 percent, but no higher, for radiculopathy of the right lower extremity (femoral nerve) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC) 8526. 6. From July 9, 2021, the criteria for a rating of 20 percent, but no higher, for radiculopathy of the left lower extremity (femoral nerve) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC) 8526. 7. From September 20, 2018, the criteria for SMC at the housebound rate are met. 38 U.S.C. § 1114; 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on a period of active duty for training from October 1989 to February 1990, with additional service in the National Guard for a period of 20 years. The Veteran also served on active duty in the United States Army from May 1, 1992 to May 9, 1992; January 2003 to September 2007; and August 2010 to February 2012, to include service in Southwest Asia. This matter comes before the Board of Veterans' Appeals (Board) from an August 2013 rating decision by a Depart of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran testified before the undersigned in August 2017. The Board previously remanded this matter in December 2017 and April 2021. The most recent, April 2021, remand was for updated records and a current examination, which the Veteran underwent in July 2021. The Veteran had previously presented for VA examinations in April 2013, October 2018, and October 2020. The July 2021 remand was to secure an adequate medical opinion as to flare-ups. This has now been secured; thus, there is substantial compliance with the Board's remand directives. See Stegall v. West, Vet. App. 268 (1998) 1. From February 10, 2012, to October 15, 2018, a rating of 20 percent, but no higher, for a back disability is granted. 2. From October 16, 2018, a rating of 40 percent, but no higher, for a back disability is granted. The Veteran seeks a higher initial rating for his service-connected back disability, which he asserts is more severe than is reflected by his current rating. The Board agrees, inasmuch as he is entitled to a 20 percent rating from February 10, 2012, to September 30, 2020, and to a 40 percent rating thereafter. However, his disability does not qualify for a rating higher than 20 percent prior to September 30, 2020, nor to the maximum allowable 50 percent rating thereafter. The Veteran is currently in receipt of staged ratings for his back disability, as follows: 10 percent from February 10, 2012; 20 percent from October 15, 2018; and 40 percent from July 9, 2021. The period on appeal is from February 10, 2012, the effective date of service connection. This decision adjusts and augments the staged ratings in the Veteran's favor. The Veteran's disability has been rated under both DC 5237 (lumbosacral strain) and DC 5242 (degenerative arthritis). The Board need not assess which code is more appropriate, as they both instruct to rate under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. In this regard, the Veteran has not been diagnosed with Intervertebral Disc Syndrome; thus, the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes does not apply. See April 2013 VA back examination, section 14; October 2018 VA back examination, sections 1B and 11A; October 2020 VA back examination, sections 1B and 11A; July 2021 VA back examination, section 1B. 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. 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. 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. 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. The Board notes that the General Rating Formula rating criteria were not affected by the February 7, 2021, amendments. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The last prior, October 2020, VA examination of record was deemed inadequate in the April 2021 Board Remand; therefore, it is not probative for rating purposes with regard to range of motion. However, the October 2018 examination is compliant with Correia and Sharp and is therefore probative. Further, the April 2013 VA examiner did not conduct all required testing (see 38 C.F.R. § 4.59); therefore, the exam is also inadequate and not probative with regard to range of motion. Thus, of the four VA examinations of record, only the July 9, 2021 and October 15, 2018 reports are probative for adjudication purposes. This is not prejudicial to the Veteran, as the April 2013 (85 degrees of flexion, 70 degrees during a flare-up) and October 2020 (40 degrees of forward flexion, to include on flare-up) VA examination reports show flexion findings less favorable than those used to assign staged ratings herein. Thus, the Board will employ the October 15, 2018 VA examination report findings to rate the Veteran's disability from February 10, 2012 (beginning of the appeal period) to October 15, 2018, and the more recent July 2021 VA examination to rate the lumbar spine disability over the remainder of the appeal period. The July 2021 VA examiner estimated that, during flare-ups, the Veteran was only able to achieve 10 degrees of flexion, which supports a 40 percent rating from October 16, 2018. A rating in excess of 40 percent after October 16, 2018 is not warranted. The Veteran does not assert, nor does the evidence show, the presence of ankylosis of the spine. Here, the Board acknowledges that a rating for the spine may be assigned on the basis of functional ankylosis, which could potentially exceed 40 percent disabling. See Chavis v. McDonough, 34 Vet. App. 1 (2021). However, the Veteran does not have ankylosis, functional or otherwise, as ankylosis is the lack of movement of a joint, and the Veteran has residual 10 degrees of forward flexion during flare-ups. Id. at 13 (citing various medical treatises in defining ankylosis); see also July 2021 VA Exam at Section IX. As the rating schedule does not allow a rating in excess of 40 percent in the absence of ankylosis, a higher rating must be denied. Regarding the period from February 10, 2012 to October 15, 2018, the Veteran's back disability more closely approximated forward flexion of the thoracolumbar spine limited to 30 degrees but not greater than 60 degrees. The only examiner who adequately estimated the Veteran's functional loss, the October 2018 VA examiner, determined that forward flexion was limited to 50 degrees during the Veteran's flare-up demonstrated at that time, which is consistent with a 20 percent rating for this portion of the appeal period. A higher rating is not warranted, as there are no other flexion finding during this portion of the appeal period supporting a rating of 40 percent, and no evidence of ankylosis, functional or otherwise, for reasons similar to those outlined above. See October 2018 VA examination report at IX. Based on the foregoing, the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 20 percent for a back disability prior to October 16, 2018 and for a rating in excess of 40 percent thereafter. Thus, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021); 38 C.F.R. §§ 4.3, 4.7. The Veteran's associated objective neurological abnormalities will be addressed below. 3. From January 5, 2018, a rating of 10 percent, but no higher, for radiculopathy of the right lower extremity (sciatic nerve), is granted; a rating of 20 percent, but no higher, is granted from July 9, 2021. 4. From January 5, 2018, a rating of 10 percent, but no higher, for radiculopathy of the left lower extremity (sciatic nerve), is granted; a rating of 20 percent, but no higher, is granted from July 9, 2021. 5. From July 9, 2021, a rating of 20 percent, but no higher, for radiculopathy of the right lower extremity (femoral nerve), is granted. 6. From July 9, 2021, a rating of 20 percent, but no higher, for radiculopathy of the left lower extremity (femoral nerve), is granted. As noted above, the Board must rate objective neurologic abnormalities such as this as part of the increased rating for the spine claim on appeal. See 38 C.F.R. § 4.71a, General Rating Formula for the Spine; Chavis, supra. The July 2021 VA-contracted examiner noted bilateral lower extremity radiculopathy due to the Veteran's spine disability, and the AOJ assigned a 10 percent rating for radiculopathy of the right and left lower extremities, for both the sciatic and femoral nerves (resulting in four distinct ratings), effective July 9, 2021, under DCs 8520 and 8526. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720). Under these criteria, 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. Likewise, paralysis of the femoral nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8526, Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Severe incomplete paralysis is rated as 30 percent disabling. Complete paralysis of the quadriceps extensor muscles is rated as 40 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 Board does note, for reference and illustrative purposes only, that the definitions for "mild" includes not very severe. WEBSTER'S II NEW COLLEGE DICTIONARY at 694 (1995). A synonym for "mild" is "slight," which is defined as small in size, degree, or amount. Id. at 1038. The definitions for "moderate" include of average or medium quantity, quality, or extent. Id. at 704. Finally, definitions for "severe" include extremely intense. Id. at 1012. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type 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 Here, the July 9, 2021 VA examiner noted 4/5 muscle strength, no muscle atrophy, normal (2+) reflexes, and decreased sensation in the right and left upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes. Straight leg testing was positive, and the examiner indicated the Veteran experience bilateral mild constant pain and moderate intermittent pain, paresthesias and/or dysesthesias, and numbness, with both femoral and sciatic nerve root involvement. These findings of a mild loss of strength, decreased sensation and moderate symptoms is supportive a 20 percent ratings, but no higher, in both the femoral and sciatic nerves, and no other neurological DCs may be considered. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) (when a condition is specifically listed in the rating schedule, it may not be rated by analogy and should be rated under the diagnostic code that specifically pertains to it). As the Veteran's findings are not moderately severe, which the Board construes as medium to intense, or severe, which the Board construes as extremely intense, higher ratings are not warranted. In this regard, more substantial muscle strength loss, compromised reflexes, and complete loss of sensation would be needed to award higher ratings under these DCs. Notably, the record does not reflect marked muscle atrophy, that the foot dangles or drops, that there is no active movement of muscles, weakened or lost knee flexion, or paralysis of the quadriceps extensor muscles. In this regard, no earlier VA examination noted radiculopathy of the lower extremities or symptoms of radiculopathy. See April 2013 VA examination at 8-12 (5/5 muscle strength; no muscle atrophy, 2+ reflexes; normal sensory examination; negative straight leg test; and no radicular pain or other signs or symptoms of radiculopathy); October 2018 VA examination at IV-VII (5/5 muscle strength; no muscle atrophy, 2+ reflexes; normal sensory examination; negative straight leg test; and no radicular pain or other signs or symptoms of radiculopathy); October 2020 VA examination at IV-VII (5/5 muscle strength; no muscle atrophy, 2+ reflexes; normal sensory examination; negative straight leg test; and no radicular pain or other signs or symptoms of radiculopathy). However, the Veteran's VA medical treatment records reflect a provisional diagnosis for lumbar radiculopathy (non-specific to sciatic or femoral nerves) on January 5, 2018, with a referral for appropriate chiropractic intervention. This is the earliest medical evidence of record regarding the presence of any radiculopathy; however, its nature and severity is not addressed. See VA Medical Records. Given the lack of any favorable findings in subsequent 2018 and 2020 VA examinations but affording the Veteran the benefit of the doubt, the Board will assign a 10 percent rating, but no higher, under DC 8520 for mild sciatic nerve involvement from this date, as the July 2021 is construed as a progression of the condition into multiple nerve involvement. Based on the foregoing, the evidence of record persuasively weighs against the Veteran's claim for compensable ratings prior to January 5, 2018, in excess of 10 percent from January 5, 2018 until July 9, 2021, and in excess of 20 percent for radiculopathy of the right and left lower extremities (sciatic and femoral nerves) thereafter. As the evidence of record persuasively weighs against any further increased ratings, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); Lynch, supra 38 C.F.R. §§ 4.3, 4.7. 3. From September 20, 2018, SMC at the housebound rate is granted. Although the Veteran did not initially claim SMC at the housebound rate, VA has a well-established duty to maximize a claimant's benefits. SMC at the housebound rate is payable is when a veteran has a single service-connected disability rated as 100 percent and has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. Here, the Veteran has several service-connected disabilities independently ratable at 60 percent, or more, at the time he is in receipt of a 100 percent rating for PTSD, or September 20, 2018, warranting SMC from that date. S. Bush Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Saumur, 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.