Citation Nr: 22019972 Decision Date: 04/03/22 Archive Date: 04/03/22 DOCKET NO. 14-35 807 DATE: April 3, 2022 ORDER A rating in excess of 20 percent for degenerative arthritis of the lumbar spine is denied. A separate 10 percent rating for right lower extremity radiculopathy from June 18, 2020, until August 5, 2021, and a noncompensable rating thereafter, is granted. A separate 10 percent rating for left lower extremity radiculopathy from June 18, 2018, until August 5, 2021, and a noncompensable rating thereafter, is granted. Service connection for occipital neuralgia is denied. FINDINGS OF FACT 1. The Veteran served on active duty from February 1997 to June 2009; he has been 100 percent disabled since October 2018. 2. A lumbar spine disability is manifested by subjective complaints of pain and muscle spasm; objective evidence includes restricted range of motion, localized tenderness, and abnormal gait. 3. Bilateral lower extremity radiculopathy is manifested by objective evidence of mild incomplete paralysis of the sciatic and femoral nerves during a June 18, 2018, VA examination; objective evidence from an August 5, 2020, VA examination showed no radicular symptoms. 4. The evidence does not show a current diagnosis of occipital neuralgia, nor does it show symptoms causing functional impairment for which the Veteran is not already compensated. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for degenerative arthritis of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107(a), 5107A (2012); 38 C.F.R. §§ 3.321(b), 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5003, 5235-5243 (2020); 38 C.F.R. § 4.71a DC 5003, 5235-5243 (2021). 2. The criteria for a separate 10 percent rating for right lower extremity radiculopathy from June 18, 2018, until August 5, 2021, and for a noncompensable rating thereafter, have been met. 38 U.S.C. §§ 1155, 5107(a), 5107A (2012); 38 C.F.R. §§ 3.321(b), 4.40, 4.45, 4.59, 4.71a, 4.124a DCs 8520, 8526 (2021). 3. The criteria for a separate 10 percent rating for left lower extremity radiculopathy from June 18, 2018, until August 5, 2021, and for a noncompensable rating thereafter, have been met. 38 U.S.C. §§ 1155, 5107(a), 5107A (2012); 38 C.F.R. §§ 3.321(b), 4.40, 4.45, 4.59, 4.71a, 4.124a DCs 8520, 8526 (2021). 4. Occipital neuralgia was not incurred in service, cannot be presumed to have been incurred therein, and is not secondary to a service-connected disability. 38 U.S.C. §§ 1110, 1111, 1112, 1113, 1116, 5103(a), 5103A, 5107(b) (2012); 38C.F.R. §§ 3.102, 3.303(a), 3.307, 3.309 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In October 2018, the Board denied the appeals. The Veteran appealed to the Veterans Claims Court. In September 2020, the Court vacated the Board's decision. In June 2021 and December 2021, the Board remanded the issues for additional evidence. They now return to the Board for adjudication. Increased Rating Claims Turning to the relevant laws and regulations, 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. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Lumbar Spine Lumbosacral spine disabilities are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71a, DCs 5237-5243. Intervertebral disc syndrome (IVDS) is rated under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Veteran has been rated under DCs 5010-5242 and the Board will consider all relevant diagnostic codes. A rating in excess of 20 percent will be warranted when the objective medical evidence shows the following: forward flexion of the thoracolumbar spine 30 degrees or less (40%); favorable ankylosis of the entire thoracolumbar spine (40%); or, incapacitating episodes of IVDS having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months (40%). New regulations under 38 C.F.R. § 4.71a governing the rating of musculoskeletal issues were promulgated and became effective February 7, 2021. From that date, the Veteran is entitled to a higher rating through either the old or new diagnostic codes, whichever is most favorable. The amended regulations clarify that DC 5243 is to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign DC 5242 for all other disc diagnoses. No other changes were made to the rating criteria for the spine. Additionally, the highest rating allowable under DC 5003 for degenerative arthritis is 20 percent. Thus, although the Veteran has X-ray evidence and is service connected for degenerative arthritis, a higher rating is not warranted under that diagnostic code. Turning to the evidence, ankylosis of the thoracolumbar spine has not been shown. VA examiners in October 2015, June 2018, August 2021, and January 2022 found no ankylosis of any kind for the thoracolumbar spine. Similarly, ankylosis was not shown in any VA or private medical records. Next, he has not described, nor have medical records shown, that the thoracolumbar spine regularly 'locked up' such that functional ankylosis was present. Therefore, the medical evidence does not support a higher rating for favorable ankylosis of the thoracolumbar spine. Next, the forward flexion of the thoracolumbar spine has consistently exceeded more than 30 degrees. The October 2015 VA examiner measured forward flexion to 55 degrees during flare-ups, and 60 degrees otherwise. The June 2018 VA examiner measured forward flexion as 70 degrees upon initial measurement and after repetitive use but found that neither repeated use over time nor flareups would cause additional loss of range of motion. The August 2021 VA examiner measured forward flexion as 75 degrees, with no additional loss after three repetitions, but estimated that for repeated use over time and during flareups it would be reduced to 70 degrees. The examiner also noted that there was pain exhibited on all range of motion testing, including on weight-bearing and active motion, that did not result in additional functional loss. The examiner declined to perform passive range of motion testing of the spine stating it would be a burden to both the provider and the Veteran. Further, a January 2022 VA examiner found forward flexion to 50 degrees, with pain on all range of motion testing and no change in limitation of motion on active or passive motion. The examiner found no change in flexion after three repetitions and estimated no additional loss of range of motion after repeated use over time. The Veteran reportedly denied having flareups during the examination, and as such, the examiner did not estimate any loss of motion during flareups. Next, private and VA medical records similarly failed to note forward flexion limited to 30 degrees or less. As such, the medical evidence does not support a higher rating based on limitation of flexion. Next, as to IVDS, an October 2015 VA examiner diagnosed IVDS but without sufficient incapacitating episodes with the associated physician-prescribed bedrest to warrant a higher rating. A June 2018 VA examiner also confirmed a diagnosis of IVDS, and upon review of the medical records found episodes of bed rest over the 12-prior months but limited to less than one week. In contrast, the August 2021 and January 2022 VA examiners did not find a diagnosis of IVDS. Collectively, no VA examiner both found a diagnosis of IVDS as well as at least 4-weeks of physician prescribed bed rest required for a higher rating. Similarly, VA and private medical records did not find a diagnosis of IVDS accompanied with incapacitating episodes of at least 4-weeks of physician-prescribed bed rest. As such, the medical evidence fails to support a rating in excess of 20 percent due to incapacitating episodes of IVDS. Radiculopathy To warrant a compensable rating for radicular symptoms impacting the sciatic or femoral nerves and associated with a service-connected lumbar spine disability, the evidence must show: mild incomplete paralysis of the sciatic nerve (10% under DC 8520); moderate incomplete paralysis of the sciatic nerve (20% under DC 8520); mild incomplete paralysis of the femoral nerve (10% under DC 8526); or, moderate incomplete paralysis of the femoral nerve (20% under DC 8526). An October 2015 VA examiner found no evidence of radiculopathy. Similarly, the August 2021 and the January 2022 VA examiners found no evidence of radiculopathy. When referring to earlier complaints of radicular pain, the January 2022 VA examiner found that there was no objective evidence or radiculopathy found during the examination and thus no diagnosis could be made. However, a June 2018 VA examiner diagnosed the Veteran with radiculopathy and found objective evidence of radicular symptoms. Specifical, mild bilateral radicular pain and numbness of the femoral and sciatic nerves was noted. The Veteran also specified that nerve pain was not always consistent. Here, given that radicular symptoms may be rated part and parcel with increased rating claims of the lumbar spine, separate ratings for right and left lower extremity radiculopathy are warranted. Specifically, as a rating for mild incomplete paralysis of the sciatic or femoral nerve each equate to 10 percent ratings for each extremity, it is equally favorable to be rated under either diagnostic code. The objective, competent medical evidence supporting a separate rating during the appeal period is constrained to the June 2018 VA examination. Although the Veteran has complained of periodic radicular pain, the objective medical evidence in the October 2015, August 2021, and January 2022 VA examination reports shows no radiculopathy. Similarly, VA and private medical records during the appeal period do not show lower extremity radicular symptoms. As such, separate 10 percent ratings for mild incomplete paralysis of the sciatic nerve for the left and right lower extremity are warranted from the June 2018 VA examination, the first objective medical evidence during the appeal period of lower extremity radiculopathy, and a noncompensable level from the date of the August 2021 VA examination and for the remainder of the appeal period, given that the objective medical evidence affirmatively shows a lack of radicular symptoms from that date forward. No medical professional, to include the June 2018 VA examiner, diagnosed the Veteran with moderate incomplete paralysis of the femoral or sciatic nerves in either lower extremity. As such, 10 percent ratings under DC 8520 for both right and left lower extremity radiculopathy, but no higher, between June 18, 2018, and August 2, 2021, and a noncompensable rating for each thereafter, are warranted. With regard to all appeals, the Board has considered the Veteran's lay statements and testimony. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Moreover, the medical findings (as provided in the examination report and other clinical evidence) directly address the criteria under which these disabilities are evaluated. Based on the above, separate compensable ratings for bilateral lower extremity radiculopathy are granted as discussed, but the evidence does not support a higher rating for degenerative arthritis of the lumbar spine. Service Connection for Occipital Neuralgia Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). For a disability to be service connected, it must be present at the time a claim for VA disability compensation is filed or during or contemporary to the pendency of the appeal. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). The Veteran claims that he has a current disability of occipital neuralgia that was either caused by service or proximately due to a service-connected disability. Turning to the evidence, the first element of service connection a current disability is not met, as he does not have a diagnosis of occipital neuralgia during the appeal period. He was initially diagnosed with intractable chronic migraines without aura, cervicogenic migraine, occipital neuralgia, and cervicalgia in March 2012 private medical records. A February 2013 VA examiner diagnosed the Veteran with migraines (for which he is already service connected); however, for occipital neuralgia, the VA examiner found no pathology to render a diagnosis. Rather, the examiner found a proximate relationship between the Veteran's headaches and the already service-connected cervical spine disability. Next, an August 2021 VA examiner indicated that a diagnosis of occipital neuralgia had been made in March 2012 but did not find the cranial nerve was impacted or list any symptoms of occipital neuralgia. The examiner was unclear as to whether there was a current diagnosis. However, a January 2022 VA examination clarified, finding the Veteran had a current diagnosis of migraines including migraine variants, and the diagnosis of occipital neuralgia was acute and had resolved in 2012, prior to the period on appeal. During the January 2022 VA examination, the Veteran complained of symptoms of a constant headache daily accompanied by nausea, vomiting, sensitivity to lights and sounds, with a duration of several hours a day. He stated that the pain would start as tense on the posterior neck and go to the frontal lobe area. The January 2022 VA examiner found that these symptoms were consistent with the migraine headaches for which he is already compensated. Collectively, the evidence persuasively weighs against finding a current disorder of occipital neuralgia during the appeal period. Further, symptoms alone can constitute a disability if it results in functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). However, here, there are no claimed symptoms that have not been associated with service-connected disabilities. The January 2022 VA examiner competently associated the claimed symptomatology with service-connected migraine headaches. As he is already compensated for those symptoms, there are no outstanding symptoms that are causing functional limitations. To grant service connection for a separate disability for the same symptomatology would lead to unlawful pyramiding. As noted above, service connection may only be granted for a current disability. Thus, there are no confirmed current diagnoses of occipital neuralgia during the appeal period and no evidence of functional impairment for symptoms not already associated with a service-connected disability, service connection is not warranted by the medical evidence. As the first element of service connection is not met, the Board need not assess the probative weight of medical opinions for direct and secondary service connection. The Board has considered the Veteran's lay statements that he has occipital neuralgia caused by service. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. However, he is not competent to diagnose himself or to offer an opinion as to the etiology of a current disorder due to the medical complexity of the matter involved. Such competent evidence has been provided by the service records, clinical evidence, and examinations obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. In light of the above, the evidence weighs persuasively against the claim claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brendan Evans, 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.