Citation Nr: 22017396 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 18-06 142 DATE: March 29, 2022 ORDER A rating higher than 40 percent for degenerative arthritis of the spine and invertebral disc syndrome (herein after back disability) is denied. A rating higher than 40 percent for right lower extremity radiculopathy is denied. FINDINGS OF FACT 1. The Veteran's back has shown favorable ankylosis; unfavorable ankylosis is not shown. 2. The Veteran's right leg radiculopathy has not been shown to manifest muscular atrophy or complete paralysis. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 40 percent for a back disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes (DCs) 5242-5243. 2. The criteria for a rating higher than 40 percent for right lower extremity radiculopathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1966 to June 1968. These matters have a procedural history which includes a Board Decision in February 2021 and a February 2022 Order of the Court of Appeals for Veterans Claims (Court) which enacted a Joint Motion for Remand (JMR) vacating the February 2021 Decision. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Back Disability The regulations pertaining to rating musculoskeletal disabilities were revised, effective February 7, 2021. Claims, such as this, pending prior to the effective date will be considered under both old and new rating criteria from that date, and whichever criteria is more favorable to the Veteran will be applied from that date. The Veteran is currently assigned a 40 percent rating for his back disability under DC 5242-5243. DC 5242 refers disabilities to the General Rating Formula for the Spine, which was not revised in the 2021 regulations. DC 5243, which provides that intervertebral disc syndrome (IVDS) is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, was revised in the 2021 regulations. However, as there is no evidence which indicates that the Veteran has met the conditions set forth for an incapacitating episode, neither the pre or post revision criteria of DC 5243 are applicable in this matter. Indeed, the sole focus of the JMR was that the Board did not adequately discuss whether the Veteran's back disability showed the functional equivalent of ankylosis sufficient to warrant a rating higher than 40 percent. Thus, the Board will focus its analysis on the issue presented in the JMR i.e., whether the Veteran's back disability meets the criteria to be considered the functional equivalent for ankylosis sufficient to warrant a rating higher than 40 percent. Pursuant to DC 5242, a 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is awarded for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Note (5) of the General Rating Formula specifically defines unfavorable ankylosis as a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire 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. Fixation of a spinal segment in neutral position (0 degrees) always represents favorable ankylosis. The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). Thus, in order for the Veteran to meet the criteria for a rating higher than 40 percent, there must be some evidence which supports a finding of unfavorable ankylosis not just ankylosis. Based on the evidence of record, there is no finding of unfavorable ankylosis of the Veteran's spine, including the functional equivalent of such. As presented by the JMR, the Veteran stated that his spine represented the functional equivalent of ankylosis as he was unable to bend either forward or backward and an August 2020 VA examination found that his flexion and extension was limited to 0 degrees when in a flare-up. However, the rating criteria is specifically clear that a 0 degree position equates to favorable ankylosis. Unfavorable ankylosis is found when there is a fixed position in either flexion or extension AND one or more of other concurrent results: difficulty walking due to reduced line of vision, restricted opening of mouth/chewing, limited breathing due to diaphragmatic respiration, gastrointestinal symptoms, dyspnea or dysphagia, cervical subluxation or dislocation, or neurological symptoms due to nerve root stretching. In the Veteran's case, none of these criteria are shown to be present. The Veteran's spine, as evidenced by his own testimony and the findings of the August 2020 VA examiner, is fixed in a neutral 0 degree position which limits his ability to twist and bend forward and backward. The Veteran, then, has favorable ankylosis of his back as defined by VA and the rating criteria applicable to his disability. Favorable ankylosis does not warrant a rating higher than 40 percent. Indeed, favorable ankylosis is specifically assigned a 40 percent rating by the General Rating Formula, DC 5242. Furthermore, there is no indication that the Veteran's back is fixed in either flexion or extension and also results in any of the additional criteria necessary to support a rating higher than 40 percent. He did not testify to any of the additional rating criteria in his May 2020 hearing and none of the criteria were noted or found in the August 2020 hearing. While the Veteran testified that he had difficulty walking, there is no evidence which indicates this limitation is caused by a reduction in the Veteran's line of sight due to a fixed flexion or extension of his spine. Thus, the evidence does not support a finding that the Veteran has the functional equivalent of unfavorable ankylosis, which is necessary in order to support a rating higher than 40 percent. The Board is sympathetic to the Veteran's claim and finds that the Veteran's statements regarding his pain credible. The Board also acknowledges the Veteran's statements about the impact of his pain. However, the Veteran's own May 2020 hearing testimony and the physical examination findings of the 2020 examination do not establish that the Veteran has the functional equivalent of unfavorable ankylosis as defined and set forth by the applicable rating criteria. As such, the evidence does not support a rating higher than 40 percent for the Veteran's back disability and the claim must be denied. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991). Right Leg Radiculopathy The Veteran's right leg radiculopathy was assigned a 40 percent rating pursuant to DC 8520. A higher 60 percent rating is warranted for severe incomplete paralysis, with marked muscular atrophy. An 80 percent rating is warranted for complete paralysis. Complete paralysis consists of the foot dangling and dropping, with no active movement possible of the muscles below the knee and flexion of the knee weakened or lost. 38 C.F.R. § 4.124a. The terms of the JMR found that the Board did not adequately discuss why it found the Veteran's radiculopathy moderately severe rather than severe. The Board notes that the rating criteria specifically requires a finding of marked muscular atrophy or complete paralysis for a 60 percent rating. There is no rating percentage available to the Veteran under the applicable diagnostic code for severe radiculopathy without a concurrent finding of marked muscular atrophy. A review of the Veteran's medical records during the appeal period shows that there was no finding at any time of any muscular atrophy of the Veteran's right lower extremity along with no findings of complete paralysis. Specifically, January 2017, June 2017, December 2019, and August 2020 VA examinations all noted the Veteran did not have muscle atrophy. Furthermore, none of these examinations found that the Veteran's right leg radiculopathy symptoms were severe in any category. All of the examiners found that the overall disability severity of the Veteran's right leg radiculopathy was moderate. None of the examiners rated the radiculopathy as severe. Thus, the objective evidence shows that the Veteran does not meet the specific criteria set forth in a 60 percent or higher rating. There is no indication from the VA examination findings that the Veteran's right lower extremity radiculopathy meets a functional equivalent of marked muscular atrophy. The evidence of record show that the Veteran does not have any degree of muscular atrophy or that any of his radiculopathy symptoms were found to be more than moderate. Thus, based on the evidence of record, the Board is unable to find that the Veteran's right leg radiculopathy meets the criteria to be defined as severe or warrants a rating higher than 40 percent. The Board has again considered the Veteran's lay statements. However, these statements do not establish that the Veteran meets the criteria as set forth by the applicable diagnostic code for a rating higher than 40 percent. As such, the evidence does not support a rating higher than 40 percent for the Veteran's right leg radiculopathy and the claim must be denied. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991). JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Parrish 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.