Citation Nr: 23045486 Decision Date: 08/16/23 Archive Date: 08/16/23 DOCKET NO. 15-44 911 DATE: August 16, 2023 ORDER A disability rating in excess of 10 percent for a back disability prior to October 10, 2019, is denied. A disability rating of 40 percent for a back disability, but no higher, from October 10, 2019, is granted. An initial disability rating of 20 percent for radiculopathy of the left lower extremity, but no higher, is granted. FINDINGS OF FACT 1. Prior to October 10, 2019, the Veteran's thoracolumbar spine disability was characterized by pain and limitation of forward flexion to less than 85 degrees, but more than 60 degrees; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spina contour was not shown. 2. From October 10, 2019, the Veteran's thoracolumbar spine disability was characterized by pain and limitation of forward flexion to less than 30 degrees during flareups; ankylosis of the back and incapacitating episodes of IVDS were not shown. 3. Throughout the entire period on appeal, and affording him the benefit of the doubt, the Veteran's left lower extremity radiculopathy was characterized by moderate symptoms; moderate-sever symptoms were not shown. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent, for intervertebral disc syndrome (IVDS) with degenerative arthritis of the thoracolumbar spine, for the period prior to October 10, 2019, 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. The criteria for a 40 percent rating, but no higher, for intervertebral disc syndrome (IVDS) with degenerative arthritis of the thoracolumbar spine, for the period from October 10, 2019, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5243. 3. Throughout the period on appeal, the criteria for a rating of 20 percent, but no higher, for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.120, 4.124a, DC 8620. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Marine Corps, on active duty from February 1992 to February 1996, and in the Army from January 2003 to March 2004. His awards include the Combat Infantryman Badge. The Veteran testified at a hearing before the undersigned Veterans Law Judge in November 2016. A transcript of that hearing is of record. This matter was last before the Board of Veterans' Appeals (Board) in May 2021, when it was remanded for further development. The Board is now satisfied there was substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, the Regional Office (RO) was instructed to schedule the Veteran for a VA examination. After the required development was completed, these issues were readjudicated and the Veteran sent a Supplemental Statement of the Case. Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case. Increased Rating Disability evaluations are determined by applying a schedule of ratings which is based on average impairment of earning capacity based on the specific diagnostic codes identifying the various disabilities. 38 U.S.C. §1155; 38 C.F.R. Part 4. Where 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. For musculoskeletal disabilities, a higher rating may be granted based on greater limitation of motion due to pain on use, including during flare-ups. 38 C.F.R. §§ 4. 10, 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, and therefore, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59. The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare-ups. The Veteran's back disability has been assigned a 10 percent rating based on painful motion from November 5, 2013, under 38 C.F.C. §§ 4.59, 4.71a, DC 5243. He is in receipt of a 20 percent rating from October 10, 2019, to June 13, 2021, and 40 percent thereafter. 38 C.F.R. §4.71a, DC 5243 applies a general rating that is applicable for most spine disabilities. Under this rating formula: " A 10 percent rating is warranted when forward flexion of the thoracolumbar spine is measured 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 spine contour. " A 20 percent rating is warranted when the evidence shows forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; 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; or IVDS with incapacitating episodes having a total duration of at least two weeks, but less than four weeks, during the past 12 months. " A 40 percent rating is warranted when the evidence shows forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine; or IBDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. " A 50 percent rating is warranted when the evidence shows unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, DC 5243. Ankylosis is the "immobility and consolidation of a joint due to disease, injury, or surgical procedure." See Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). The term "combined range of motion" refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, DC 5243, Note 2. Additionally, an "incapacitating episode" is "a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." 38 C.F.R. §4.71a, DCs 5237, 5243, Note 1. 1. Entitlement to a rating in excess of 10 percent for a back disability prior to October 10, 2019 The Veteran's back disability has been assigned a 10 percent rating based on painful motion prior to October 10, 2019, under 38 C.F.R. §§ 4.59, 4.71a, DC 5242. The Veteran contends that he is entitled to an increased disability rating for his service-connected back condition throughout the periods on appeal. For the reasons outlined below, the Board finds that a rating in excess of 10 percent is not warranted prior to October 10, 2019. Specifically, the Veteran underwent a VA examination in March 2014. Here, the VA examiner diagnosed him with lumbago. The Veteran reported that he had gone without back pain for almost a year, but then sees a chiropractor every two weeks that helps somewhat. He stated that his back pain is intermittent, although he has had no injections or surgeries and denied flareups. Upon examination, his initial range of motion (ROM) measurements were observed as normal, with no objective evidence of painful motion. Right and left lateral flexion was normal, although painful motion began at 20 degrees for each. The VA examiner noted his right and left lateral rotation to be normal, although there was evidence of painful motion. The Veteran was able to perform repetitive-use testing with three repetitions. His post-test forward flexion was normal; however, his post-test extension was limited to 20 degrees. Moreover, other ROM measurements post-test were normal. As such, the VA examiner noted functional loss of pain on movement. The examiner checked "no" as to pain on palpation, muscle spasm, spinal contour, guarding of the thoracolumbar spine and/or abnormal gait. Further, muscle strength was normal, and no atrophy noted. His reflex and light touching testing provided normal results. Importantly, the VA examiner opined that he did not have ankylosis. While arthritis was noted on x-ray, he did not use an assistive device. Overall, the VA examiner found that his back condition caused functional impact, as the Veteran was a coal miner and was required to lift up to 100 pounds, squat, and crawl. The March 2014 VA examiner provided an addendum opinion in April of that year. Here, the examiner noted an additional diagnosis of mild IVDS. In August 2014, the Veteran wrote that his back disability is "worse than 10% disabling." In support, he submitted private medical treatment. Here, his treating clinician Dr. S.B. wrote that the combination of his back and radiculopathy symptoms warrant "a minimum of 30% based upon the nature of this condition." Dr. S.B. continued, writing that his back disability was aggravated by bending, twisting, lifting and positional oddities. Moreover, he has limited ROM, pain the lower back and "positive Yeomans test and Kemps bilaterally." In September 2014, the Veteran's wife wrote a statement describing his back symptoms. Here, she stated that his physical activities have "decreased immensely." Due to the chronic pain, he "can no long[er] jog, hikes are short & limited to flat ground, [and] the time he can spend riding is now also limited. He even has trouble playing sports with our children." During VA treatment in May 2015, the Veteran presented for complaints of knee pain. However, his musculoskeletal system was observed to have no focal tenderness and with fair ROM to all extremities. In November 2015, he presented for private treatment complaining of low back pain with leg and feet numbness. In a statement submitted December 2015, he wrote that he visits the chiropractor weekly for back pain that radiates down to his left foot. In November 2016, the Veteran provided testimony at a Board hearing. Here, he reported struggling lifting objects weighing over 50 pounds. He stated that he missed "some" work due to his back pain but "not a lot." Further, he has missed between one to two weeks of work in the prior year. Regarding symptoms, he said they affect him when playing sports or running, but when "just going out and maybe walking through the woods or fishing, anything like that, no, not really." As far as treatment, he testified that he takes generic Tylenol and uses BioFreeze for inflammation. Additional private treatment records from January to November 2016 reveal the Veteran's treatment for chronic back pain. However, these records do not include ROM measurements. The Veteran presented for VA treatment regarding his chronic back pain in October and November 2018. Here, his clinician noted that he received pain injections, was prescribed a brace and orthotics. While the Veteran's statements throughout the record during this period indicate chronic back pain, they do not indicate a restriction to 60 degrees forward flexion. Moreover, the VA examination of record indicate mostly normal ROM testing. However, he did exhibit painful motion throughout the record, to include lay statements, which is accounted for in his 10 percent rating for this period. In considering these ratings, the Board has considered the impact of functional loss 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. 202, 206-7 (1995). In this case, the Veteran's pre-October 2019 symptoms, as noted in his substantive appeal and at his hearing, are compensated by his current ratings. Further, the additional functional loss caused by the musculoskeletal pain is accounted for in his range of motion measurements. See 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). Put another way, the Veteran's complaints are adequately contemplated in the ratings he currently receives. Based on the Veteran's observable ranges of motion and his statements during this period, the Board finds that the evidence is persuasively against finding that the Veteran's ROM prior to October 10, 2019, was limited such that the next higher rating is for contemplation. 2. Entitlement to a rating of 40 percent, but no more, from October 10, 2019, for a low back disability The Veteran's back disability is currently rated as 20 percent disabling from October 10, 2019, to June 13, 2021, and 40 percent thereafter. The Board finds that the Veteran is entitled to a 40 percent rating, but no higher, from October 10, 2019. Here, the Board notes that the Veteran underwent a VA examination in October 2019. Indeed, the RO used the ROM measurements procured at this examination to grant a 20 percent rating. However, in its previous Remand, the Board found this examination to be inadequate because the VA examiner did not adequately note their findings on ROM measurements. As such, the Board finds the October 2019 VA examination to be of little probative value. Nevertheless, the Veteran reported during this examination that his condition had worsened. Specifically, he could not lift over 25 pounds, he was forced to take frequent breaks during work, and cannot workout or go running. Affording the Veteran the benefit of the doubt, the Board finds his lay statements during the October 2019 VA examination to be probative, and they reflect that his forward flexion is limited to 30 degrees or less when contemplating flareups or repetitive use testing. As such, a 40 percent rating is warranted from that date. However, a rating in excess of 40 percent during this period is not warranted. To obtain a rating in excess of 40 percent, the Veteran must demonstrate unfavorable ankylosis of the entire thoracolumbar spine. In this regard, VA examinations dated October 2019 and June 2021 indicate the Veteran exhibited a small but measurable range of motion. Additionally, the VA examiners found that no ankylosis existed. Moreover, the Veteran's lay statements during this period do not indicate that he cannot move his spine. As he exhibited a measurable range of motion and no ankylosis, the Veteran cannot be considered for a rating based on ankylosis. Therefore, the Board concludes that a rating in excess of 40 percent is not warranted during this period. The Board is aware of the Veteran's occupational limitations for this period, such as decreased mobility and limited activities. Despite the severity of these functional limitations, they are adequately addressed by the Veteran's current rating for this period. Further, while the Veteran was noted to have intervertebral disc syndrome (IVDS) in his most recent VA examination report, he was not prescribed bedrest for a total of more than one week. Accordingly, the Board concludes that a rating in excess of 40 percent is not warranted for the Veteran's lumbosacral spine disability from October 10, 2019. Without a finding of ankylosis, this is the highest schedular rating for this disability. 3. Entitlement to an initial rating of 20 percent for radiculopathy of the left lower extremity, but no higher The Veteran contends that his left lower extremity radiculopathy symptoms warrant a higher disability rating than he currently receives. The Board agrees and assigns a 20 percent for the entire period on appeal. When evaluating the extent of a Veteran's spine 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, and 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), Note 1. Here, the Veteran is presently in receipt of an initial 10 percent disability rating prior to June 13, 2021, and 20 percent thereafter, for neurological symptoms in his left lower extremity under 38 C.F.R. § 4.124a, DC 8620, addressing paralysis of the sciatic nerve. The Board feels that this is the most appropriate diagnostic code. Under this diagnostic code: " A 10 percent rating is warranted when the radiculopathy is "mild" in nature. " A 20 percent rating is warranted when the radiculopathy is "moderate" in nature. " A 40 percent rating is warranted when the radiculopathy is "moderately severe" in nature. Neither the Rating Schedule nor the regulations provide definitions for descriptive words such as "mild," "moderate," "moderately severe," and "severe." Sellers v. Wilkie, 30 Vet. App. 157 (2018). It should also be noted that use of terminology such as "mild" and "moderate" by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. Rather than applying a mechanical formula, the Board must instead evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Turning to the evidence, the Veteran underwent a VA examination regarding his spine disability in May 2014. Upon examination, the examiner noted normal reflex and sensory testing, and his straight leg raising test was negative. However, the VA examiner diagnosed him with radiculopathy. Specifically, the examiner noted "moderate" paresthesias and "mild" numbness of the left lower extremity. Overall, the VA examiner opined that the severity of his radiculopathy was "moderate" in nature. During his November 2016 Board testimony, the Veteran stated that his left lower extremity radiculopathy slows him down at work. Moreover, when given the options between "mild" "moderate" and "moderately severe", the Veteran characterized his radiculopathy symptoms to be "moderate." He explained that his foot frequently goes to sleep, with numbness radiating up to the hip at times. The Veteran underwent another VA examination in October 2019. Here, the VA examiner found his left lower extremity radiculopathy to cause "mild" numbness and paresthesias. Overall, this VA examiner opined that the sciatic nerve symptoms were "mild" in nature. Next, the Veteran underwent another VA examination in June 2021. Here, the examiner noted his left lower extremity radiculopathy to exhibit mild paresthesias, and moderate numbness. In January 2022, the Veteran was afforded a VA examination for a separate peripheral neuropathy claim. Here, his left lower extremity paresthesias was noted as "severe" while his left lower extremity numbness was noted as "none." The examiner observed moderate incomplete paralysis of the sciatic nerve. Overall, the VA examiner opined that his radiculopathy caused no functional impairment. Affording the Veteran the benefit of the doubt, the Board finds that the evidence shows that his left lower radiculopathy more closely approximates the criteria for a 20 percent rating throughout the period on appeal. In this regard, the Veteran complained of numbness and tingling throughout the record, consistent with the levels reported at his VA examinations. Moreover, the 2014 and 2021 VA examiners found his condition to be "moderate." Although he reported difficulties with drop foot and numbness, the objective medical evidence during this period shows that his symptoms, overall, are moderate in nature. Importantly, the Veteran testified that he believes his radiculopathy symptoms to be "moderate" as opposed to mild or moderate-severe. Thus, the Board finds that a rating of 20 percent, but no higher, is warranted for the entire period on appeal. In considering the appropriate disability ratings, the Board has considered the Veteran's statements that his disabilities are worse than the ratings he currently receives. Specifically, the Veteran has difficulty running, playing sports, hiking at elevation, as well as with bending. His radiculopathy causes numbness and tingling. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). 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 disabilities 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"). On the other hand, such competent evidence concerning the nature and extent of the Veteran's disabilities have 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 and treatment reports) directly address the criteria under which this disability is evaluated. (Continued on the next page) ? 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. ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. McDonald