Citation Nr: 23006167 Decision Date: 01/31/23 Archive Date: 01/31/23 DOCKET NO. 17-21 961 DATE: January 31, 2023 ORDER Entitlement to an initial 40 percent disability rating for the Veteran's back disability is granted. From May 31, 2013, entitlement to an initial 20 percent disability rating for the Veteran's right lower extremity sciatic nerve radiculopathy is granted. From May 31, 2013, entitlement to an initial 20 percent disability rating for the Veteran's left lower extremity sciatic nerve radiculopathy is granted. FINDINGS OF FACT 1. At worst, the Veteran's back disability manifested as forward flexion to 30 degrees. 2. The Veteran's right lower extremity sciatic nerve radiculopathy manifested as moderate incomplete paralysis. 3. The Veteran's left lower extremity sciatic nerve radiculopathy manifested as moderate incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for an initial 40 percent disability rating for the Veteran's back disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 2. From May 31, 2013, the criteria for an initial disability rating of 20 percent for the Veteran's right lower extremity sciatic nerve radiculopathy have been met. 38 U.S.C. § § 1155, 5107; 38 C.F.R. § § 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 3. From May 31, 2013, the criteria for an initial disability rating of 20 percent for the Veteran's left lower extremity sciatic nerve radiculopathy have been met. 38 U.S.C. § § 1155, 5107; 38 C.F.R. § § 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from May 1976 to May 1979 and from May 1982 to April 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision of the Department of Veterans Affairs. In November 2018, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for the Veteran to receive a new VA examination for his back disability. The March 2015 VA examination did not provide a complete assessment of the Veteran's back disability. Thus, the new examiner was instructed to include passive, weight bearing, and non weight bearing range of motion testing as well as describing how the Veteran's range of motion was impacted during flare-ups. See Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Veteran received a new VA examination in November 2019. This examination did not comply with the remand directives because the examiner did not note whether any limitation of motion was specifically due to pain nor provide the Veteran's range of motion testing results for passive range of motion testing, despite finding both were painful. The examiner also failed to offer an adequate opinion concerning the impact of the Veteran's flare-ups on his range of motion. Thus, the case was remanded for a new VA examination in April 2021. The Veteran received new VA examinations in July 2021 and January 2022 for his disabilities. The Board determined that these examinations were inadequate because of the discrepant findings and the failure to distinguish between the Veteran's sciatic nerve and knee disabilities. Therefore, in May 2022, the Board remanded the case for the Veteran to receive new VA examinations, that were not to be conducted by the clinicians who examined him in July 2021 and January 2022. Additionally, a remand was necessary to ensure the Veteran's private treatment records were in the claims file. In August 2022, the Veteran received new VA examinations, with a different VA examiner than the ones who conducted the July 2021 and January 2022 examinations. These examinations adequately assessed the severity of his disabilities, including passive range of motion, a discussion of flare-ups and estimated range of motion during flare-ups, and the peripheral nerves opinion distinguished between the knee and neurological disabilities. His private treatment records were also added to the file. Accordingly, the Board finds there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Neither the Veteran nor his representative have raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.20. When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). 1. Back Disability The Veteran's back disability is evaluated under the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a. Although the portion of the rating schedule that addresses the musculoskeletal system was revised effective February 7, 2021, this Diagnostic Code was not changed. Under this Diagnostic Code, a 10 percent evaluation is warranted when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or, there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, there is vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted when the forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, there is 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 evaluation is warranted when the forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent evaluation is warranted where there is unfavorable ankylosis of the entire thoracolumbar spine, and 100 percent evaluation is warranted when there is unfavorable ankylosis of the entire spine. Id. "Unfavorable ankylosis" is defined 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." 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id. Under the rating schedule, forward flexion to 90 degrees, and extension, lateral flexion, and rotation to 30 degrees, each, are considered normal range of motion of the thoracolumbar spine. Id. at Plate V. The criteria under the General Rating Formula are to be applied with or without symptoms of pain (whether or not it radiates), aching, or stiffness in the area of the spine involved. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment are to be evaluated separately under an appropriate Diagnostic Code. Id. at Note (1). 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). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The criteria under the General Rating Formula are to be applied with or without symptoms of pain (whether or not it radiates), aching, or stiffness in the area of the spine involved. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment are to be evaluated separately under an appropriate Diagnostic Code. Id. at Note (1). The record consistently shows that the Veteran does not have Intervertebral Disc Syndrome (IVDS). Consequently, a disability rating under Diagnostic Code 5243 will not be considered. The Veteran's private treatment records from 2013 and 2014 documented his back pain and decreased range of motion. He reported pain with that increased with sitting and transitioning from laying down to sitting or standing. He experienced aching pain with frequent sharp pain. He also occasionally had radiating and shooting pain. In March 2015, the Veteran received a VA examination. In its November 2018 remand, the Board found the range of motion and flare-ups portions of the examination to be inadequate and therefore they will not be addressed or assigned probative weight. However, the portions of the examination report that do not pertain to range of motion will be considered. At the examination, he reported consistent back pain that occasionally radiated to his hips. When he overexerted himself, he experienced flare-ups that increased his back pain to an 8 or 9 out of 10. He also had to be careful when moving his back. The examiner also noted that the Veteran did not have ankylosis nor use an assistive device. The Veteran's private and VA treatment records continued to document his pain from 2015 to 2019. He complained of back pain that radiated down his legs. He rated the pain as a 6 to 8 out of 10, and his disability was aggravated by sitting and moving from sitting to standing. His August 2017 private treatment record noted, however, that his back retained full range of motion and his lower extremity sensory examination was normal. In a February 2019 VA treatment record the Veteran reported that his pain had worsened, and he experienced shooting pain down his left leg. He also reported occasional back spasms. The Veteran's next VA examination was in November 2019. The Veteran denied having flare-ups but did experience functional loss where his pain limited his ability to bend over. He also reported that after skeet shooting, which required standing for 20 minutes, his back would hurt for 5 to 10 minutes, and he would need to sit. The examiner noted that the Veteran regularly used a cane. In its April 2021 remand, the Board found the range of motion testing that the examiner completed was inadequate because the examiner failed to document when pain began on range of motion testing nor provide the Veteran's range of motion testing numbers for passive and weight bearing testing. The range of motion measurements and discussion of flare-ups will not be afforded any probative weight. The Veteran's next VA examination was in July 2021, but as discussed above the Board determined this VA examination was also inadequate. Nevertheless, the Veteran's lay statements concerning his disability must be considered. He reported difficulty going up and down stairs, picking or lifting items weighing more than 10 pounds, and walking. He reported weekly flare-ups of sharp pain that radiated down his legs and lasted 2 to 3 days. His flare-ups were precipitated by sudden movement, going downstairs, lifting items weighing more than 10 pounds, or riding in a car for more than an hour. In a December 2022 VA treatment record his back pain was documented and the Veteran's range of motion was flexion to 50 degrees and extension to 10 degrees. The Veteran's next VA examination was in August 2022 and it was conducted by a clinician who had not previously examined him. He reported daily flare ups which he rated as moderate and lasted for 4 to 6 hours. They were precipitated by walking, moving from standing to sitting, climbing stairs, or trying to squat. These activities were also impacted by his pain and reduced range of motion. His active range of motion was flexion to 30 degrees; extension to 15 degrees; and right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation all to 20 degrees. In the examination report, after recording the initial ranges of motion and stating which planes of motion were painful, the examiner was prompted to specify, in degrees, if any limitation of motion was specifically attributable to pain, fatigability, incoordination, or other factors; but only if it was different than the initial range of motion measurements. Because the examiner did not list ranges of motion in that section, this means there was no limitation of motion specifically attributable to pain and other factors, other than what was recorded during initial range of motion testing. He experienced pain with active and passive testing, but his range of motion did not change. The examiner specifically found that his passive range of motion was the same as his active range of motion. He also experienced pain with weight bearing testing. There was no change in his range of motion after repetitive-use testing. After repeated use over time and during flare-ups, he was impacted by pain, fatigability, weakness, lack of endurance, and incoordination. Although the examination was not conducted after repeated use over time or during a flare-up, the examiner estimated that in both these situations his flexion would be 30 degrees, and extension, bilateral lateral flexion, and bilateral lateral rotation would all be 20 degrees. He experienced muscle spasms, but they did not result in an abnormal gait or contour. He did not have ankylosis and regularly used a cane. Based on the evidence of record that Board finds that the Veteran is entitled to an initial 40 percent disability rating. The Board acknowledges that the Veteran's back disability rating was increased to 40 percent from July 27, 2021, but the Board finds an earlier increase is warranted as the prior examinations' range of motion testing were deemed inadequate. A 40 percent rating is warranted based on the August 2022 VA examination showing that the Veteran's flexion was limited to 30 degrees, as contemplated by the 40 percent criteria. A disability rating higher than 40 percent is not warranted because a higher rating would require a finding of unfavorable ankylosis. It was specifically noted at his VA examinations that ankylosis of the spine was not present. The record shows that his disability has worsened during the appeal period as evidenced by his report of increasing flare ups and lay description of his symptoms. The August 2022 VA examiner, however, considered how the Veteran's functional ability was additionally limited by pain, weakness, fatigability, and incoordination. Even considering the Veteran's flare ups and after repeated use over time, the Board concludes the Veteran's back disability does not equate to more than the disability picture contemplated by the 40 percent rating already assigned. 38 C.F.R. § 4.71a. The examiner noted that his flexion remained to 30 degrees, and the Veteran does not have any of the factors that VA employs to define unfavorable ankylosis. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). Therefore, the Board finds that the Veteran is entitled to an initial 40 percent disability rating, but not higher. The Veteran's neurological complications are addressed below. 2. Right and Left Sciatic Nerve The Veteran's right and left lower extremity sciatic nerve disabilities are rated under Diagnostic Code 8520. Under Diagnostic Code 8520, mild incomplete paralysis of the sciatic nerve 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; and severe incomplete paralysis, with marked muscular atrophy, is rated as 60 percent disabling. Complete paralysis of the sciatic nerve warrants an 80 percent evaluation; with complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured 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. 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). As noted above in the Veteran's private treatment from 2013 and 2014 he reported radiating back pain. At his March 2015 VA examination, however, there were no signs of radiculopathy and his strength, reflexes, and sensory tests for both legs were normal. He also tested negative on the straight leg raising test. A positive test suggests radiculopathy. The Veteran continued to report radiating back pain, but his August 2017 private treatment record noted that his lower extremity sensory examination was normal. In January 2019, the Veteran received a VA examination for his bilateral lower extremities. His right lower extremity was rated as having moderate constant pain, and severe intermittent pain, paresthesias and/or dysesthesias, and numbness. His left lower extremity was rated as having mild constant pain, and moderate intermittent pain, paresthesias and/or dysesthesias, and numbness. His strength and reflexes in both legs were normal, but he experienced decrease sensation in his leg/ankle and foot/toes. He had no muscle atrophy. The examiner rated the disability for both legs as moderate. As part of the Veteran's November 2019 back VA examination, the Veteran's bilateral sciatic nerve radiculopathy was also evaluated. The Veteran's strength and reflexes continued to test as normal, and he showed decrease sensation in his foot/toes. His right lower extremity showed moderate intermittent pain, paresthesias and/or dysesthesias, and numbness. His left lower extremity showed moderate intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness. The examiner rated his disabilities as mild. The Veteran's July 2021 VA examination for his bilateral sciatic nerve radiculopathy was found inadequate. However, in his lay statements at the examination, he reported radiating pain to both extremities. In an August 2021 private record, the Veteran denied radicular pain. Additionally, his reflexes were normal and his straight leg test on both legs was negative. In a September 2021 VA opinion, the examiner noted the discrepancies in the November 2019 and July 2021 VA examinations. The examiner opined that the Veteran did not have bilateral or unilateral radiculopathy as far back as March 19, 2015, because the March 2015 VA examination was absent of objective or subjective findings of radiculopathy. Additionally, the examiner called into question the July 2021 finding that the Veteran has decreased muscle strength but normal sensory and reflexes. The examiner opined that it was less likely that the Veteran had decreased muscle strength. A December 2021 VA treatment record noted that the Veteran had sciatic pain in both legs. He experienced nerve pain 3 to 4 times a week and it was worse with lifting. The Veteran had decreased strength with hip flexion and right knee flexion; both were 4/5. The Veteran received another VA examination in January 2022. This examination was also found inadequate because the examiner failed to address the inconsistent findings noted by the September 2021 VA examiner. Nevertheless, the examination noted the Veteran's description of his symptoms. He reported that his radiating back pain limited his mobility, and he required a cane for support. He had difficulty shopping and had to use a mobility cart. He also had trouble with prolonged standing or walking and difficulty getting up from sitting positions. The Veteran's most recent VA examination was in August 2022. The examiner noted that the Veteran's bilateral radiculopathy went back to 2010. He experienced burning pain and numbness that radiated down his legs with movement and ambulation. The Veteran reported needing a cane to get in and out of his car. For both extremities the examiner noted mild intermittent pain with moderate paresthesias and/or dysesthesias and numbness. His strength and reflexes were normal. He had decreased sensation in his lower leg/ankle and foot/toes but no tropic changes. His gait was also normal. The examiner rated his disability as moderate. The examiner also addressed whether the symptoms were due to the Veteran's knee disability or his neuropathy and concluded that the Veteran has bilateral peripheral sciatic neuropathy as part of his back disability. The examiner stated that the knee disability "impact[ed] his knees functionality" and that his sciatic neuropathy is an aggregate of the pain and impairment of the lumbar spine. The examiner noted that the neuropathy did not impact the knee condition. The Veteran's knee disability was a musculoskeletal condition, and his sciatica was a pain of the nerve roots from the lumbar spine. The Board finds that the Veteran is entitled to an initial disability rating of 20 percent for each lower extremity. Additionally, the Board finds that the evidence shows that he has had his sciatic nerve disability for the entire appeal period, stemming from May 31, 2013. To this extent, the appeal is granted. The Veteran's sensory symptoms were intermittent, and at times constant, pain; paresthesias and/or dysesthesias, and numbness. He also had decreased sensation at some examination. At worst, his sensation was noted as decreased but not absent. The Veteran's January 2019 VA examination showed that his intermittent pain, paresthesias and/or dysesthesias, and numbness in his right lower extremity were severe; however, this was the sole examination of record that documented this level of severity. Additionally, despite the severe sensory symptoms, the examiner described the Veteran's overall level of disability as moderate. Additionally, at the January 2019 examination, the Veteran's symptoms were wholly sensory. He did not have any nonsensory symptoms. His lower extremity strength and reflexes were all normal bilaterally. He did not have skin changes. There were no other nonsensory symptoms documented. Therefore, at most, his disability could be moderate and meet the 20 percent criteria under Diagnostic Code 8520. 38 C.F.R. § 4.124a (2018). The January 2019 examination report does not support a rating higher than 20 percent. During the appeal period, it is reasonable to conclude that to be moderately severe, non-sensory symptoms would need to be present because the maximum available rating for wholly sensory symptoms is 20 percent. Non sensory impairment can include symptoms such as "a reflex abnormality, [or] weakness or muscle atrophy." Miller v. Shulkin, 28 Vet. App. 376, 380 (2017). The Veteran's reflexes and gait have remained normal during the appeal period. The record has provided conflicting evidence on the Veteran's strength. When considering the discrepancies, the September 2021 VA examiner noted it was less likely that the Veteran experienced a reduction in strength. Moreover, his most recent VA examination noted normal strength. The Veteran's July 2021 VA examination record showed a slight reduction in strength because it was 4/5 bilaterally for knee extension, ankle plantar flexion, and ankle dorsiflexion. If it were attributed to his radiculopathy, the Board still finds this slight reduction in strength is insufficient to find that the Veteran's symptoms were moderately severe such that a higher rating is warranted. A December 2021 VA treatment record also noted slight decrease in strength, with 4/5 bilaterally for hip flexion, normal bilaterally for knee extension, normal for knee flexion on the left and 4+/5 on the right, and normal dorsiflexion bilaterally. A strength measurement of 4/5 means there is active movement against some resistance, which is only slightly less than 5/5 (normal strength). He did not have more severe weakness such as 3/5 (active movement against gravity), 2/5 (active movement with gravity eliminated), 1/5 (palpable or visible muscle contraction, but no joint movement), or 0/5 (no muscle movement). To be moderately severe, the one nonsensory symptom documented would need to be more severe than a slight reduction in strength. Most of the medical evidence shows that his symptoms are wholly sensory and the reduction in strength after the July 2019 examination is slight. The Veteran's disability is best contemplated by a 20 percent rating as moderate. Therefore, in considering the evidence of record the Board finds that an increase to 20 percent for the entire appeal period is warranted for the Veteran's right and left lower extremity sciatic nerve disabilities. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Brunot, 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.