Citation Nr: 22016432 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 15-22 771A DATE: March 22, 2022 ORDER Prior to December 10, 2019, an initial rating higher than 20 percent for lumbar spine multilevel degenerative disc disease and spondylosis (lumbar spine disability) is denied. From December 10, 2019, an initial 40 percent rating for a lumbar spine disability is granted. An initial rating higher than 10 percent for right lower extremity radiculopathy is denied. An initial rating higher than 10 percent for left lower extremity radiculopathy is denied. An initial compensable rating for a lumbar spine surgical scar is denied. FINDINGS OF FACT 1. Prior to December 10, 2019, the Veteran's lumbar spine disability was not manifested by forward flexion of 30 degrees or less, or favorable ankylosis. 2. From December 10, 2019, the Veteran's lumbar spine disability approximated forward flexion of no greater than 30 degrees but did not manifest in unfavorable ankylosis. 3. Bilateral lower extremity radiculopathy was not present prior to December 10, 2019 and was not manifested by moderate incomplete paralysis thereafter. 4. The Veteran's lumbar spine scar is not manifested by any disabling effects not considered under Diagnostic Codes 7800-04. CONCLUSIONS OF LAW 1. Prior to December 10, 2019, the criteria for, an initial rating higher than 20 percent for the Veteran's lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5243. 2. From December 10, 2019, the criteria for an initial 40 percent rating for the Veteran's lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5243. 3. From December 10, 2019, the criteria for a disability ratings higher than 10 percent for left or right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8526. 4. The criteria for an initial compensable rating for a lumbar spine surgical scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, DC 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Marine Corps from July 1981 to July 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision. In March 2019, the Veteran testified at a Board hearing before a Veterans Law Judge who is no longer at the Board. In June 2020, he declined the opportunity to testify at an additional hearing. The matter was previously remanded for additional development in July 2019 and July 2021. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, present level of disability is the primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 1. Lumbar spine prior to December 10, 2019 The Veteran's lumbar spine disability is rated under 38 C.F.R. § 4.71a, DC 5243. Prior to January 16, 2020, he is assigned a 20 percent rating. From that date, he has a 40 percent rating. For the reasons set forth below, the Board finds that the 40 percent rating is warranted from December 10, 2019. Otherwise, the request for an increased rating is denied. 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. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). The Board finds that the evidence of record persuasively weighs against a rating higher than 20 percent for the lumbar spine prior to December 10, 2019. An August 2013 VA examination documented forward flexion of 90 degrees, with the onset of pain at 85 degrees. With repetitive testing, forward flexion was 60 degrees. During the examination, the Veteran showed the examiner how much he could bend on a "bad day," which the examiner measured as 45 degrees. No ankylosis was present. This is the only competent evidence measuring the Veteran's range of motion for the period prior to December 10, 2019, and it shows that lumbar spine range of motion was not limited to 30 degrees or less, even during "bad days" as described by the Veteran. During his March 2019 hearing, he reported being able to bend 50 to 60 degrees. Notably, he has not shown the medical expertise necessary to be able to accurately measure his own range of motion. However, even if he was competent, his assessment would not warrant a higher rating. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss associated with his lumbar spine symptoms. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Note 1 of the General Rating Formula provides that neurologic abnormalities associated with a spine disability are to be separately rated. Ratings for the Veteran's bilateral lower extremity radiculopathy are discussed below. Otherwise, he has not been diagnosed with any other such abnormalities associated with his lumbar spine disability. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes also found in 38 C.F.R. § 4.71a. During his March 2019 hearing, he testified that his chiropractor prescribed bed rest for "a day or two every now and then." This chiropractor subsequently submitted a disability benefits questionnaire (DBQ) in December 2019 indicating that the Veteran had IVDS with incapacitating episodes of at least 4 weeks but less than 6 weeks. While the Board has considered this evidence, the Veteran's outpatient treatment records include treatment from this chiropractor beginning in 2017. These records consistently show that the Veteran was treated only with chiropractic adjustments and advised to use ice and other measures at home. He was not, at any time, prescribed bed rest to treat his lumbar spine disability. In that regard, the evidence is persuasively against a finding that a rating under the IVDS formula is warranted. 2. Lumbar spine from December 10, 2019 As noted above, the Veteran is currently assigned a 40 percent rating effective January 16, 2020. The Board finds that this 40 percent rating is warranted from December 10, 2019. On that date, the Veteran's VA chiropractor submitted a DBQ indicating that the Veteran loses "significantly all lumbar range of motion" and cannot perform activities of daily living during flare-ups of his condition. The examination portion of the DBQ showed forward flexion of 40 degrees. Given that the criteria for the 40 percent rating were met on a VA examination conducted one month later, the Board will reasonably infer that the impairment from flare-ups described in the DBQ approximates forward flexion of 30 degrees and that the 40 percent rating is warranted from that date. A rating higher than 40 percent is not warranted, however. As discussed, the 50 percent rating requires unfavorable ankylosis of the lumbar spine. Unfavorable ankylosis is defined as a condition in which the entire 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 a 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, General Rating Formula for Diseases and Injuries of the Spine at Note 5. The evidence does not reflect any diagnosed or functional ankylosis. Moreover, there is no indication from either the medical evidence or the Veteran's assertions that his lumbar spine disability results in any of the above manifestations. Therefore, a rating higher than 40 percent is not appropriate. 3. Right and left lower extremity radiculopathy The Veteran is currently assigned 10 percent ratings from December 10, 2019, for radiculopathy in each of his lower extremities under 38 C.F.R. § 4.124a, DC 8526. Paralysis of the anterior crural nerve (femoral) is evaluated in accordance with the criteria set forth in DC 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 disabling. 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. First, the Board finds that separate ratings for lower extremity radiculopathy are not warranted prior to December 10, 2019. An August 2013 VA examination documented normal strength, sensation, and reflexes in the lower extremities, with no indication of any radicular pain. VA treatment records from December 2013 through November 2016 showed similar findings. During his March 2019 Board hearing, the Veteran indicated that pain stayed in his back and hips and did not affect his legs. From December 10, 2019, ratings higher than 10 percent are not warranted. The DBQ submitted on that date documented absent knee reflexes and diminished ankle reflexes. Sensation was decreased in the upper thigh and normal elsewhere. Strength was 4/5 in the hips and normal elsewhere. The Veteran's chiropractor noted moderate intermittent pain, mild paresthesias, and moderate numbness. He characterized the overall severity level as moderate. In contrast, a January 2020 VA examination noted strength of 4/5 in the hips and normal elsewhere. Sensation was normal. Knee reflexes were diminished, and ankle reflexes were normal. The examiner noted mild intermittent pain, mild paresthesias, and mild numbness, and characterized the overall severity level as mild. The December 2019 DBQ indicates moderate incomplete paralysis, whereas the January 2020 VA examination indicates mild incomplete paralysis. The Board concludes that the latter is more probative because it is more consistent with the subsequently generated records. In that regard, VA treatment records from October 2020 show that sensation and reflexes were intact. Additional records from December 2020 and June 2021 indicate normal sensation with no numbness or tingling. An August 2021 VA examination documented normal strength, reflexes, and sensation. The examiner noted mild intermittent pain with no numbness or paresthesias. These findings are all consistent with no more than mild incomplete paralysis. Therefore, the Board finds that the overall weight of the evidence is persuasively against a finding that lower extremity radiculopathy was manifested by moderate incomplete paralysis. In making this determination, the Board acknowledges the Veteran's September 2021 statement that his legs "give out," and that he has fallen several times. However, this statement is incongruous with the VA examination findings from one month earlier. In addition, a letter from the Veteran's chiropractor, also dated September 2021, only noted the loss of reflexes, without mention of any additional impairment. Therefore, the Veteran's statements, alone, do not warrant a higher rating for radiculopathy. 4. Lumbar spine surgical scar The Veteran's scar is rated under DC 7805 for other scars (including linear scars) and other effects of scars evaluated under DC 7800, 7801, 7802, and 7804. The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, DC 7805 was not changed by the August 13, 2018, amendments. DC 7805 instructs that any disabling effect(s) not considered in a rating provided under DC 7800-04 under an appropriate Diagnostic Code. The Board finds that the evidence of record persuasively weighs against the assignment of a compensable rating for the Veteran's scar under Diagnostic Code 7805. In making this determination, the Board has also considered the other Diagnostic Codes pertaining to scars. However, as detailed in VA examinations from August 2013, January 2020, and August 2021, as well as the December 2019 DBQ, the Veteran's scar is not of the head, face, or neck, is not deep and nonlinear, and is not associated with underlying soft tissue damage. Although it is superficial and not associated with underlying soft tissue damage, it does not cover an area or areas of 144 square inches or greater. Moreover, the Veteran's scar is not unstable or painful. Therefore, DC 7800, 7801, 7802, and 7804, both prior to and from August 13, 2018, are inapplicable. (Continued on the next page) In addition, the Veteran has not put forth any statements regarding symptoms or other impairment associated with this car. As a result, the Board finds that the evidence of record persuasively weighs against the Veteran's claim for a compensable rating for his lumbar spine surgical scar. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Shamil Patel, 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.