Citation Nr: 23044331 Decision Date: 08/09/23 Archive Date: 08/09/23 DOCKET NO. 20-00 054 DATE: August 9, 2023 ORDER Entitlement to a rating in excess of 20 percent for a low back condition is denied. Entitlement to service connection for bilateral lower extremity radiculopathy associated with a low back condition is granted. FINDINGS OF FACT 1. During the period on appeal the Veteran's low back condition has not been manifested by forward flexion of 30 degrees or less or ankylosis. 2. The Veteran suffers from bilateral lower extremity radiculopathy as a result of his service-connected low back condition. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 20 percent for a low back condition 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) 5237. 2. The criteria for service connection for bilateral lower extremity radiculopathy associated with a low back condition have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Air Force from August 2008 to February 2012. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2017 Regional Office (RO) rating decision. Increased Ratings 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 illness proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. While the Board typically considers only those factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). When there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt 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, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, in cases where the Veteran's claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to a rating in excess of 20 percent for a low back condition The Veteran contends that he is entitled to a higher rating for his service connection low back condition. The Veteran's low back disability is rated at 20 percent under Diagnostic Code (DC) 5237, which addresses strain of the lumbar or cervical portions of the spine. Under DC 5237, a rating in excess of 20 percent is warranted when the evidence shows: Forward flexion of the thoracolumbar spine to 30 degrees or less (40 percent); or, Favorable ankylosis of the entire thoracolumbar spine (40 percent). 38 C.F.R. § 4.71a. Based on the evidence of record, the Board determines that a rating in excess of 20 percent is not warranted. The Veteran underwent a VA examination in May 2019. The Veteran reported chronic, long standing low back pain and stiffness that has worsened somewhat overtime. He further reported interval development of lower extremity radiating pain and numbness, somewhat intermittent and also worsening a bit over time . In regard to flare-ups, the Veteran reported occasional episodes of more intense low back pain and stiffness lasting up to a few days. He also reported functional loss as difficulty with heavy lifting or twisting motions. On examination, the Veteran exhibited forward flexion to 80 degrees, extension to 25 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation to 30 degrees. The examiner noted that range of motion (ROM) does not contribute to functional loss. However, he noted pain on examination which causes functional loss and pain on forward flexion. There was no evidence of localized tenderness/pain, pain on weight bearing, or additional loss after repetitive use testing. The examiner noted that the Veteran was not examined immediately after repetitive use, however the examination was medically consistent with Veterans statements describing functional loss with repetitive use over time. In regard to flare-ups, the examiner noted that that the examination was medically consistent with Veterans statements. The examiner estimated ROM during flare-ups as forward flexion to 65 degrees and extension to 20 degrees. No guarding or muscle spasms were noted and the Veteran exhibited normal muscle strength, no atrophy, and normal reflexes. No ankylosis or IVDS was noted. The Veteran exhibited decreased senses in right and left upper thigh. The examiner noted bilateral lower extremity radiculopathy that resulted in moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness of femoral nerve. The examiner indicated that the Veteran bilateral lower extremity radiculopathy was moderate in severity. There was also no evidence in the Veteran's treatment records during the period on appeal, to support a rating in excess of 20 percent based upon limitation of motion. Therefore, a rating in excess of 20 percent is not for application. When considering these ratings, the Board has considered the impact of functional loss in the Veteran's back due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 206 -07 (1995). In this case, the Veteran has stated that his low back pain and stiffness that has worsened. However, while the Veteran experiences the aforementioned symptoms, overall, it does not appear that these symptoms result in additional and significant functional loss, and his complaints are adequately contemplated in the ratings he is currently assigned. See Sharp v. Shinseki, 29 Vet. App. 26 (2017); Mitchell v. Shinseki, 25 Vet. App. 32, 37-43 (2011) (pain must affect some aspect of the normal working movements of the body such as strength, speed, coordination, or endurance). Moreover, it does not appear, based on the evidence of record, that the Veteran is so significantly impacted by his low back disability during a flare up as to result in symptoms consistent with a higher disability rating. The Board acknowledges the assertions and belief from the Veteran that his low back condition has progressed beyond its original diagnosis and thus his ratings should be increased. Nevertheless, while he is competent to report the observable physical symptoms of this disorder, such as pain and stiffness, he is not competent to determine that it has progressed or the level of any progression. This issue is medically complex and requires specialized medical education and knowledge of the interaction between multiple systems in the body as well as the ability to interpret complicated diagnostic medical testing. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007), See 38 U.S.C. § 1110. On the other hand, such competent evidence concerning the nature and extent of the Veteran's low back condition has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which this disability is evaluated. Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his low back condition according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Accordingly, based on the evidence of record, a rating in excess of 20 percent for the Veteran's low back disability is not warranted for the period on appeal. The Veteran's appeal is denied. 2. Service Connection for Bilateral Lower Extremity Radiculopathy Next, when evaluating the extent of the Veteran's low back disability, the Board is required to consider whether a separate evaluation is warranted for any associated neurological abnormality including, but not limited to, bowel or bladder impairment, neurological impairment in the extremities or other such disorders, which are to be evaluated under the appropriate diagnostic code. See 38 C.F.R. § 4.71 (a). In this case, the Board finds that service connection is warranted for bilateral lower extremity radiculopathy as due to his low back condition as the medical evidence indicates diagnoses for both left and right lower extremity radiculopathy. At his May 2019 VA examination, the Veteran reported development of lower extremity radiating pain and numbness. The examiner determined that the Veteran exhibited radiculopathy of the bilateral lower extremities of a moderate nature. Giving the Veteran the benefit of the doubt, the Board finds that the Veteran suffers from bilateral lower extremity radiculopathy due to his low back condition. As a result, the Board concludes that service connection is warranted. Aside from the Veteran's bilateral lower extremity radiculopathy, he has not been found to have any other associated neurological abnormality and as such, additional ratings for those disorders are not warranted. Martin T. Mitchell Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Vample, Erica 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.