Citation Nr: A25035809 Decision Date: 04/18/25 Archive Date: 04/18/25 DOCKET NO. 240308-422134 DATE: April 18, 2025 ORDER Entitlement to an initial evaluation in excess of 20 percent for status post lumbar spinal fusion prior to June 10, 2023, is granted with a 40 percent evaluation effective April 25, 2023. Entitlement to initial evaluation in excess of 20 percent for status post lumbar spinal fusion prior to April 25, 2023, is denied. Entitlement to an initial evaluation in excess of 40 percent for status post lumbar spinal fusion from April 25, 2023, to June 10, 2023, and thereafter is denied. Entitlement to a compensable initial evaluation for lumbar spinal fusion surgical scar is denied. REMANDED Entitlement to an initial evaluation in excess of 20 percent for incomplete paralysis of the right leg sciatic nerve is remanded. Entitlement to an initial evaluation in excess of 10 percent for incomplete paralysis of the left leg sciatic nerve is remanded. FINDINGS OF FACT 1. Prior to April 25, 2023, pain and lack of endurance during flare-up and with repeated use over time limit Veteran's motion to between 30 and 60 degrees of forward flexion, with a combined range of motion less than 120 degrees. 2. From April 25, 2023, to June 10, 2023, and thereafter, pain, fatigability, weakness, lack of endurance, and incoordination caused by repeated use over time and during flare-up have limited the Veteran's forward flexion of the thoracolumbar spine to 30 degrees or less. 3. At no point during the appeal period has the Veteran's status post lumbar spine fusion caused unfavorable ankylosis of the thoracolumbar spine, unfavorable ankylosis of the entire spine, or symptoms analogous to ankylosis. 4. The Veteran's service-connected lumbar spinal fusion surgical scar has never been 144 square inches (929 square centimeters) or greater. CONCLUSIONS OF LAW 1. Prior to April 25, 2023, the criteria for an initial evaluation in excess of 20 percent for status post lumbar spinal fusion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237. 2. From April 25, 2023, to June 10, 2023, the criteria for a 40 percent evaluation, but no higher, for status post lumbar spinal fusion have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5237. 3. Since June 10, 2023, the criteria for an initial evaluation in excess of 40 percent for status post lumbar spinal fusion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5237. 4. The criteria for a compensable initial evaluation for lumbar spinal fusion surgical scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, DC 7802. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1970 to February 1972, including service in Vietnam from January 1971 to December 1971, where he earned the Combat Infantryman's Badge. Following appeals in both the legacy and modernized systems, the VA agency of original jurisdiction (AOJ) awarded service connection for lumbar spinal fusion with right and left lower extremity sciatica and a surgical scar in a December 2023 rating decision. The Veteran now appeals the initial evaluations assigned in that rating decision. In his March 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the December 2023 rating decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the December 2023 rating decision cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence submitted since the December 2023 rating decision, he may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Increased Evaluation Disability evaluations are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities (the Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular DC, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Although the Board must consider the Veteran's entire history when making disability evaluations, see Schafrath v. Derwinski, 1 Vet. App. 589 (1995), it is the present level of disability that is of primary concern where entitlement to compensation already has been established and an increase in the disability rating is at issue, see Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). Additionally, the U.S. Court of Appeals for Veterans Claims has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to increased initial evaluation for status post lumbar spinal fusion. In a lay statement accompanying his November 2020 supplemental claim for service connection, the Veteran described managing back, hip, and neck pain over the years until 2009 lumbar spinal fusion surgery. He explained that his back condition has progressed since then, to the point of considering further surgery. His March 20024 appeal of the AOJ's initial evaluations argued that VA has failed to consider his lay statements as to additional functional loss during flare-up and that the examination is not reflective of his ordinary, everyday life. He specified that the examiner failed to discuss fatigue, pain, and weakness caused by repetitive use and movement through an ordinary day. He did not assert that these symptoms warrant an evaluation in excess of 40 percent, but argued instead that these factors would support a "uniform" 40 percent evaluation through the period on appeal. In the December 2023 rating decision awarding service connection for status post lumbar spinal fusion, the AOJ assigned a 20 percent initial evaluation effective the date of his November 13, 2020, supplemental claim and a 40 percent evaluation effective the date of a "June 10, 2023, examination" based on limited motion pursuant to 38 C.F.R. § 4.71a, DC 5237. The Board notes that the 2023 examination was associated with the Veteran's claims file on June 10, 2023, but that the examination was held on April 25, 2023. Although the evidence of record does not support increased evaluation, because the information in the April 2023 examination report supports a 40 percent evaluation, the Board will adjust the effective date of that evaluation to reflect the date that the examination was held rather than the date that it was associated with the claims file. When assessing the severity of musculoskeletal disabilities that are at least partly evaluated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. 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). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court found an orthopedic examination inadequate where the examiner declined to provide an estimate of the degree of additional loss of motion due to flare-ups because such would require resort to speculation. Id. at 29, 36. All spinal disabilities are evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Lumbosacral strains are to be evaluated either under the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes (DC 5243), whichever method results in the higher rating. The Veteran does not have a current diagnosis of IVDS, and there is no evidence of incapacitating episodes based on the Veteran's lumbar spine, such criteria are not applicable to the Veteran's claim and will not be addressed further. Under the General Rating Formula, flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the 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 merits a 20 percent evaluation. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine limited to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.41a, General Rating Formula. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is 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 (zero degrees) always represents favorable ankylosis. Id. at Note 5. The Board notes that the rating criteria applicable to musculoskeletal system conditions were revised effective February 7, 2021. See 38 C.F.R. § 4.71a; 85 Fed. Reg. 76453 (Nov. 30, 2020); 85 Fed. Reg. 85523 (Dec. 29, 2020); 86 Fed. Reg. 8142 (Feb. 4. 2021). Specifically, the spine regulations were amended to state that DC 5242 for degenerative arthritis or degenerative disc disease should apply to all other disc diagnoses, but the criteria under the General Rating Formula remained unchanged. DC 5243 for IVDS changed only to the extent that it is assigned only when there is a disc herniation with compression and/or irritation of the adjacent nerve root. See 38 C.F.R. § 4.71a. But, again, the Veteran does not have a current diagnosis of IVDS, and DC 5243 is not for application in this case. As background, the private treatment records show back pain as early as 2003, with lumbar spinal fusion surgery in July 2009, followed by several months of physical therapy. The VA treatment records reflect that, following the surgery, the Veteran returned to work four weeks later, and reported in January 2010 that he was doing well since the surgery. But by May 2010 his back pain began to increase again. The Veteran retired in 2014 and moved to Arizona. The VA treatment records from Arizona showed continued struggles with back pain, physical therapy which did not help, and by August 2020 the Veteran began treatment with a series of injections and nerve blocks. During the period on appeal, the Veteran had VA examinations in January 2021 and April 2023. At the January 2021 VA examination, the examiner reviewed the Veteran's 2009 spinal fusion and diagnosed radiculopathy in each lower extremity. The Veteran described pain that had worsened over the years and particular difficulty bending due to pain. He reported daily flare-ups precipitated by physical activity or prolonged sitting and alleviated by stretching. The examiner found that the functional impact of back pain would impact prolonged walking, standing, bending, and lifting and would prohibit sitting for more than one hour. The January 2021 examiner also found no crepitus, tenderness, guarding, muscle spasm, muscular atrophy, neurologic abnormalities beyond radiculopathy, ankylosis, or IVDS or incapacitating episodes of IVDS. The January 2021 examiner measured the Veteran's initial range of motion as 60 degrees of flexion, 20 degrees of extension, and a combined 160 degrees of motion including lateral flexion and rotation, with pain in all planes of motion. The examiner found the same range of active and passive motion and noted pain in active motion, passive motion, and weight bearing. The examiner noted no pain at rest or when not bearing weight. On repetition, the examiner found motion further limited by functional loss due to pain measured as 55 degrees of flexion, 15 degrees of extension, and a combined 130 degrees of motion including lateral flexion and rotation. The examiner estimated that, with repeated use over time, the Veteran's range motion would be further limited by pain and lack of endurance to 50 degrees of flexion, 10 degrees of extension, and a combined 100 degrees of motion including lateral flexion and rotation. The examiner similarly estimated that pain and lack of endurance during flare-up would further limit the Veteran's motion to 45 degrees of flexion, 10 degrees of extension, and a combined 95 degrees of motion including lateral flexion and rotation. In April 2023, the Veteran described longstanding back pain precipitated by walking or standing for longer than 10 minutes. He also reported flare-ups two to three times per month, precipitated by increased activities, lasting two days, and relieved by prescription. He explained that during flare-ups, his ability to perform the activities of daily living and participate in social activities is diminished. The examiner opined that the functional impact of pain during flare-ups would cause difficulty bending and prohibit standing or walking for longer than 10 minutes. The examiner also opined that exacerbated pain after repeated use over time would diminish the Veteran's ability to perform the activities of daily living and participate in social activities. The April 2023 examiner noted soft tissue tenderness but indicated that such tenderness did not cause abnormal gait or spinal contour. The examiner found no crepitus, guarding, muscle spasm, muscular atrophy, neurologic abnormalities beyond radiculopathy, ankylosis, or IVDS or incapacitating episodes of IVDS. The April 2023 examiner measured the Veteran's initial range of motion as 45 degrees of flexion, 10 degrees of extension, and a combined 95 degrees of motion including lateral flexion and rotation, with pain in all planes of motion. The examiner indicated that passive range of motion testing and repetitive motion testing was medically contraindicated due to pain. The examiner estimated that, with repeated use over time or during flare-up, the Veteran's range motion would be further limited by pain, fatigability, weakness, lack of endurance, and incoordination to 30 degrees of flexion, 10 degrees of extension, and a combined 80 degrees of motion including lateral flexion and rotation. On review, the Board finds that, for the period prior to the April 2023 examination, the Veteran's back condition most closely approximated the disability picture contemplated by the existing 20 percent evaluation. At the January 2021 examination, the Veteran was initially able to bend forward to 60 degrees, which is contemplated by a 20 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5237. Addressing the Veteran's argument in his March 20024 appeal that additional functional loss due to fatigue, pain, and weakness caused by repetitive use and movement through an ordinary day or during flare-up warrant a "uniform" 40 percent evaluation through the period on appeal, the Board notes that the January 2021 examiner found pain and lack of endurance, but not fatigue or weakness, and addressed additional functional loss caused by pain and weakness. Even considering the Veteran's additional disability due to pain and lack of endurance during flare-up, the January 2021 examiner estimated that the Veteran's flexion would be limited to 45 degrees with a combined 95 degrees of motion, which is within the range contemplated by a 20 percent evaluation under DC 5237. On repetition, the January 2021 examiner noted motion further limited by functional loss due to pain to 55 degrees of flexion with a combined 130 degrees of motion. The January 2021 examiner specifically considered that pain and lack of endurance caused by repeated use over time would not limit the Veteran to less than 50 degrees of flexion with a combined 100 degrees of motion. Id. Under the applicable conditions that the Veteran cites to support a 40 percent evaluation prior to 2023, his forward flexion falls within the range from 30 to 60 degrees contemplated by a 20 percent evaluation under DC 5237. His combined range of motion only falls below 120 degrees, as contemplated by a 20 percent evaluation, during flare-up and with repeated use over time. The Veteran's symptoms during flare-up or with repeated use over time do not result in additional functional limitation to a degree that would support an initial evaluation in excess of 20 percent prior to the April 2023 examination. See Mitchell, 25 Vet. App. at 43 ("pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system"). The January 2021 examiner noted pain and lack of endurance, but these factors do not limit the Veteran's forward flexion to less than 30 degrees or cause ankylosis. At the April 2023 examination, The Veteran's initial range of motion was 45 degrees of flexion with a combined 95 degrees of motion. However, the April 2023 examiner estimated that, with repeated use over time or during flare-up, the Veteran's range motion would be further limited by pain, fatigability, weakness, lack of endurance, and incoordination to 30 degrees of flexion, as is contemplated by a 40 percent evaluation. Considering the additional functional limitation caused pain, fatigability, weakness, and lack of endurance shown at the April 2023 examination, the Board finds that the Veteran's service-connected status post lumbar spinal fusion merits as 40 percent evaluation as of the date of that examination. 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5237. There is no persuasive evidence of record demonstrating that the criteria for an evaluation in excess of 40 percent have been met at any time during the entire appeal period. To warrant a higher evaluation, the evidence must show either unfavorable ankylosis of the entire thoracolumbar spine or the entire spine, but the evidence does not indicate that the Veteran's back condition has caused ankylosis or symptoms analogous to ankylosis. The Board has considered the Veteran's lay statements, including his statements at the VA examinations as to flare-ups. But these statements do not indicate that during flare-up he loses all range of motion or experiences the functional equivalent of ankylosis. In January 2021, he reported daily flare-ups precipitated by physical activity or prolonged sitting and alleviated by stretching. He similarly reported flare-ups in April 2023, affecting his ability to perform the activities of daily living and participate in social activities. But the Veteran's ability to stretch to alleviate his back pain and participate in social activities, even in a more limited capacity, indicates a range of motion that is not analogous to ankylosis. None of the VA treatment records reflect spinal ankylosis. Nor has the Veteran or his lay statements asserted that his spine is ankylosed or locked in place. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). For these reasons, the Board finds that, an evaluation in excess of 20 percent prior to April 25, 2023, is not warranted, and an increased evaluation of 40 percent is warranted thereafter. But, throughout the entire period on appeal, the most probative evidence does not reach the level of approximate balance to warrant the assignment of a rating in excess of 40 percent for the Veteran's back condition. See Lynch v. McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021). 2. Entitlement to a compensable initial evaluation for lumbar spinal fusion surgical scar. The Veteran has surgical scars from his 2009 spinal fusion surgery and his 2013 right hip replacement. The Veteran's right hip is also service-connected, but the AOJ deferred adjudicating that issue in the December 2023 rating decision on appeal before awarding service connection in a March 2025 rating decision. The record does not indicate that the Veteran has appealed the initial evaluation assigned in the March 2025 rating decision. The diagnostic criteria instruct that scars (including linear scars) and other effects of scars are rated as burn scar(s) of the head, face, or neck (DC 7800); scar(s) not of the head, face, or neck, that are associated with underlying soft tissue damage (DC 7801); scar(s) not of the head, face, or neck, that are that are not associated with underlying soft tissue damage (DC 7802); or, unstable or painful scars (DC 7804), depending upon the predominant disability. Alternatively, disabling effects not considered under ratings for scars are to be evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.118, DC 7805. Under 7802, scars not of the head, face, or neck, that are not associated with underlying soft tissue damage warrant a 10 percent rating if the scar covers an area of 144 square inches (929 square centimeters (cm)) or greater. At the January 2021 VA medical examination, the examiner noted that the Veteran's spinal fusion and right hip replacement surgical scars were well-healed. The examiner measured the right hip scar as 18 cm long and 1 cm wide, and the spinal scar as 4.5 cm long and .5 cm wide, for a total area of approximately 18 square cm and 2.25 square cm, respectively. The Veteran did not report any pain associated with the surgical scars at the examination. The examiner found no underlying tissue damage; no depression, adherence to underlying tissue, or missing underlying soft tissue; and noted that the surgical scars were not unstable. The examiner found no disfiguring scars of the head, face, or neck. The Board finds that the Veteran's lumbar fusion surgical scar does not warrant a compensable evaluation. The lumbar fusion surgical scar is not painful, has no underlying tissue damage, and only covers a total area of 2.25 square cm. The total area of the lumbar fusion surgical scar is less than 929 square cm or 144 square inches, and therefore the Board must deny a compensable evaluation for lumbar spinal fusion surgical scar. 38 C.F.R. § 4.118, DC 7802. Although the Veteran's right hip is not currently on appeal, even considering the combined area of both the right hip and lumbar fusion surgical scars, the total area affected is less than 144 square inches or 929 square cm required for a compensable evaluation under DC 7802. At no point during the period on appeal, from November 13, 2020, to the present, did the Veteran's lumbar fusion surgical scar warrant a compensable evaluation under any diagnostic code. Indeed, the evidence establishes that the surgical scars do not affect the Veteran's head, face, or neck. 38 C.F.R. § 4.118, DC 7800. The surgical scars are neither painful nor unstable and are not associated with underlying soft tissue damage. The scars are not deep or nonlinear, and do not result in limited function. 38 C.F.R. § 4.118, DCs 7801, 7804. The Veteran's lay statements have never specifically addressed his surgical scars. The VA treatment records only reference surgical scarring from uvula plant plasty to treat sleep apnea and do not reference the Veteran's lumbar fusion or right hip surgical scars, but the Veteran is not currently service-connected for sleep apnea. Because the evidence is not in approximate balance and weighs persuasively against the assignment of a compensable evaluation for lumbar fusion surgical scar, the benefit of the doubt rule is inapplicable, and the Board must deny a compensable initial evaluation. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). REASONS FOR REMAND 1. Entitlement to an initial evaluation in excess 20 percent for incomplete paralysis of the right leg sciatic nerve. 2. Entitlement to an initial evaluation in excess 10 percent for incomplete paralysis of the left leg sciatic nerve. In the December 2023 rating decision awarding service connection for his lumbar spine, the AOJ also awarded separate compensable evaluation for right and left leg sciatic nerve pursuant to DC 8520. 38 C.F.R. § 4.124a, DC 8520. DC 8520 contemplates complete or incomplete paralysis of the sciatic nerve. At the January 2021 and April 2023 examinations, each examiner addressed radiculopathy, and both noted involvement of the sciatic nerve root, but neither indicated the involvement of any other nerve. However, the Veteran also attended a December 2022 examination for his service-connected left hip. At that examination, he reported left foot drop. 38 C.F.R. § 4.124a, DC 8521 contemplates complete or incomplete paralysis of the popliteal nerve. DC 8521 specifically awards a 40 percent evaluation for foot drop. It appears that the January 2021 and April 2023 examiners failed to note the December 2022 VA examination reflecting left foot drop. Based on DC 8521, left foot drop potentially implicates popliteal nerve involvement in the Veteran's radiculopathy. It is unclear whether the Veteran exhibited left foot drop at the January 2021 and April 2023 examinations, and because this implicates the adequacy of those examinations, the AOJ should have obtained clarification as to the popliteal nerve before relying on those examinations in the December 2023 rating decision on appeal. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate clinician to evaluate any neurologic impairment associated with the Veteran's service-connected status post lumbar spinal fusion, to include radiculopathy involving the sciatic, popliteal, or any other nerve. The clinician should review the claims file, including the December 2022 left hip examination reflecting left foot drop. Any studies and/or tests deemed necessary should be performed. The clinician should provide information responsive to the criteria listed in the appropriate Diagnostic Codes. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Schonland, Avery M. 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.