Citation Nr: 18154171
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 16-51 832
DATE:	November 29, 2018
ORDER
Entitlement to an initial disability evaluation for degenerative disc disease of the lumbar spine in excess of 10 percent disabling prior to September 24, 2015, and in excess of 40 percent disabling from September 4, 2015, is denied.
Entitlement to an initial disability evaluation for radiculopathy of the right lower extremity in excess of 20 percent disabling is denied.
FINDINGS OF FACT
1. Prior to September 24, 2015, the Veteran’s degenerative disc disease of the lumbar spine has been manifested by forward flexion of the thoracolumbar spine greater than 60 degrees, without ankylosis.  Muscle spasm, guarding, or localized tenderness has not resulted in abnormal gait or abnormal spinal contour.
2. From September 24, 2015, the Veteran’s degenerative disc disease of the lumbar spine has been manifested by forward flexion of the thoracolumbar spine 30 degrees or less, without ankylosis.
3. Throughout the appeal period, the Veteran’s radiculopathy of the right lower extremity resulted in moderate incomplete paralysis.
CONCLUSIONS OF LAW
1. The criteria for a disability evaluation for degenerative disc disease of the lumbar spine in excess of 10 percent disabling prior to September 24, 2015, and in excess of 40 percent disabling from September 4, 2015, have not been met.  38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5243.
2. The criteria for a rating in excess of 20 percent disabling for left lower extremity radiculopathy have been not met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8520.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served in the U.S. Army from March 1979 to September 1984.
Duties to Notify and Assist
VA’s duty to notify was satisfied by a letter in November 2014.  38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).
VA has also satisfied its duty pursuant to 38 U.S.C. § 5103A and 38 C.F.R. § 3.159(c) to assist the Veteran.  The record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran.  Specifically, the information and evidence that have been associated with the claims file include the Veteran’s available service treatment records, service personnel records, VA and private medical records, and the Veteran’s statements.
The duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law.  See 38 C.F.R. § 3.159 (c)(4).  In this case, the Veteran was provided with VA examinations in April 2015, July 2015, and September 2016.  The Veteran did not participate in all testing at the July 2015 and September 2016 examinations.  In a statement included with the Veteran’s October 2016 VA Form 9, the Veteran contended that the previous VA medical examination was inadequate and requested a new examination.  However, the Veteran is not prejudiced by the Board’s consideration of the examination.  The Board has assigned the Veteran the most limited range of motion during each period to the entirety of that period.  
The claims have been properly developed.  The Veteran was afforded a meaningful opportunity to participate in the adjudication of the claims, and she was provided actual notice of the rating criteria used to evaluate the disorders at issue.
Increased Rating
Ratings for service-connected disabilities are determined by comparing the veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity.  Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4.  When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.  The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).
In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition.  The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10.
Staged ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).
Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion.  38 C.F.R. § 4.40.
When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  38 C.F.R. § 4.40.  In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the United States Court of Appeals for Veterans Claims (Court) held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.”  Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.”  Id. (quoting 38 C.F.R. § 4.40).  Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.
When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).
1. Entitlement to an initial disability evaluation for degenerative disc disease of the lumbar spine in excess of 10 percent disabling prior to September 24, 2015, and in excess of 40 percent disabling from September 4, 2015
The Veteran contends that her degenerative disc disease of the lumbar spine warrants higher ratings during the appeal period.  The Veteran’s degenerative disc disease was rated as 10 percent disabling prior to September 24, 2015, and 40 percent disabling from September 4, 2015, under Diagnostic Code 5243.  38 C.F.R. § 4.71(a).  
Diagnostic Code 5243 indicates that lumbar strain should be evaluated under either the General Rating Formula for Diseases and Injuries of the Spine, or under the formula for rating Intervertebral Disc Syndrome (IVDS) based on incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25.
Under the General Rating Formula, a 10 percent disability evaluation is assigned when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; when the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 135 degrees; when there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, when there is vertebral body fracture with loss of 50 percent or more of the height.
A 20 percent evaluation is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, when 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 there is forward flexion of the thoracolumbar spine 30 degrees or less, or when there is favorable ankylosis of the entire thoracolumbar spine.  
A 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine.  
Under the Formula for Rating Intervertebral Disc Syndrome based on Incapacitating Episodes, IVDS can be rated based on the frequency of incapacitating episodes.  A 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months.  A 20 percent rating is available for 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 available with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, and a 60 percent rating is available with incapacitating episodes having a total duration of at least six weeks during the past 12 months.
Prior to September 24, 2015
The Veteran was provided with a VA examination in April 2015.  The examiner found decreased tolerance for standing and walking activities, and the Veteran had limited sitting, bending, and lifting ability.  The Veteran did not report flare-ups.  Range of motion testing found forward flexion of 80 degrees, backwards extension of 10 degrees, and right and left lateral flexion and right and left lateral rotation of 30 degrees for each.  Following repetitive use testing, forward flexion was to 70 degrees and backwards extension was to zero degrees.  There was no additional limitation in range of motion for bilateral flexion and rotation to each side.  The examiner indicated that with repeated use over a period of time, the Veteran would have range of motion limited to the same degree as shown after repeated range of motion exercises.  The examiner found muscle spasms and localized tenderness in the spine, but these did not result in abnormal spinal curvature or abnormal gait.  The examiner found right-side radiculopathy and intervertebral disc syndrome (IVDS).  However, the IVDS did not result in any incapacitating episodes of back pain during the previous twelve months.
The Veteran was afforded another VA examination in July 2015.  The Veteran did not report any flare-ups.  The Veteran was unable to perform any range of motion exercises due to wearing a back brace, and could not bend over without holding on to a cane.  Therefore, there is no range of motion testing evidence from this VA examination to support an increased rating for the period prior to September 2015.  The examiner noted tenderness, muscle spasms, and guarding; these did not result in abnormal spinal curvature or gait.  The examiner found right-sided radiculopathy affecting the sciatic nerve.  The examiner noted IVDS without evidence of incapacitating episodes.
As provided above, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated and those factors are not contemplated in the relevant criteria when evaluating limitation of motion for joint disabilities.  See DeLuca.  The Veteran’s April 2015 and July 2015 examinations indicated that the Veteran’s condition has limited her motion; however, there is no evidence that the Veteran’s condition has caused severe functional loss to warrant a higher rating.  
The Veteran’s pain in her lumbar spine has been considered to be painful in motion but not severe enough to result in unfavorable or favorable ankylosis of the entire thoracolumbar spine, and not shown to result in forward flexion of the thoracolumbar spine 60 degrees or less. 
The Veteran’s 10 percent rating for this period takes into account all attendant functional loss.  No additional medical evidence reflects that the Veteran’s spine is ankylosed or that flexion was limited to 60 degrees or less prior to September 2015.  Furthermore, there was no evidence of 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 rating in excess of 10 percent is not warranted by Diagnostic Code 5243, as the evidence has not shown incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months, or bed rest prescribed by a physician.
From September 24, 2015
On September 24, 2015, the Veteran was treated at the VA Medical Center in Alexandria, Louisiana, for complaints of back pain.  Range of motion testing found lumbar forward flexion to only 20 degrees, extension to 5 degrees, right rotation to 40 degrees and left rotation to 30 degrees, right lateral flexion was to 25 degrees and left lateral flexion was to 15 degrees, with evidence of pain on motion.  No further testing was conducted.
In September 2016, the Veteran was provided another VA examination.  The Veteran reported flare-ups, which prevent her from performing activities, to include even including getting out of bed, for 15 out of 30 days of the month.  Range of motion testing found forward flexion to 40 degrees on initial testing, but found zero degrees range of motion for extension, lateral flexion, or rotation.  The examiner indicated that Veteran reported being unable to perform these ranges of motion, and declined attempts.  The Veteran was unable to perform any repetition of motion, but reported additional decreased range of motion with flares of back pain or overuse.  
The examiner stated that the exact degree of functional loss cannot be determined without resorting to mere speculation.  To support this conclusion, the examiner reasoned that all flare-ups are different with varying degrees of impairment of functional loss and that degree of functional loss after repetitive use varies with each episode.  The examiner found no conceptual or empirical basis for making such a determination without directly observing function under these conditions.  The examiner did note that the examination results were medically consistent with the Veteran’s statements describing functional loss with repetitive use over time.  The examiner reported objective evidence of moderate pain on palpation of the lumbar spine due to degenerative changes.  The examiner found guarding was present which resulted in abnormal gait.  The examiner indicated that guarding of movement to prevent pain resulted in a slow, careful gait.  The examiner confirmed IVDS, but did not find evidence of episodes that required bed rest prescribed by a physician and treatment by a physician during the past twelve months.
As provided above, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated and those factors are not contemplated in the relevant criteria when evaluating limitation of motion for joint disabilities.  See DeLuca.  The Veteran’s September 2015 VA medical treatment examination indicated that the Veteran’s condition has limited her motion; however, there is no evidence that the Veteran’s condition has caused severe functional loss to warrant a higher rating.  The September 2016 VA examination found no evidence of ankylosis.  The Veteran’s pain in her lumbar spine has been considered to be painful in motion but not severe enough to result in unfavorable or favorable ankylosis of the entire thoracolumbar spine.
The Veteran’s 40 percent rating for this period takes into account all attendant functional loss.  No additional medical evidence reflects that the Veteran’s spine is ankylosed.
A rating in excess of 40 percent is not warranted by Diagnostic Code 5243, as the evidence has not shown incapacitating episodes having a total duration of at least six weeks during the past 12 months., or bed rest prescribed by a physician.
Additional Considerations
The Veteran is competent to attest to things she experiences through her senses, such as pain, limitation of motion, and flare-ups of symptoms that caused some limitations on prolonged standing and walking, lifting, carrying, and bending.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  However, the lay statements do not indicate that the Veteran has ankylosis of the spine or that the Veteran’s spinal impairment would otherwise meet the criteria for an increased rating. 
For all the above reasons, a higher disability evaluation for a service connected disability of the lumbar spine is not warranted. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.
2. Entitlement to an initial disability evaluation for radiculopathy of the right lower extremity in excess of 20 percent disabling
The General Rating Formula for Diseases and Injuries of the Spine allows for separate evaluations for chronic orthopedic and neurologic manifestations.  See 38 C.F.R. § 4.71a Note (1). 
Diagnostic Codes 8520-8730 address ratings for paralysis of the peripheral nerves affecting the lower extremities, neuritis, and neuralgia.  38 C.F.R. § 4.124a. Diagnostic Codes 8520, 8620, and 8720 provide ratings for paralysis, neuritis, and neuralgia of the sciatic nerve.  Neuritis and neuralgia are rated as incomplete paralysis.  Disability ratings of 10, 20, and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve.  A disability rating of 60 percent is warranted for severe incomplete paralysis with marked muscle atrophy.  An 80 percent rating is warranted with complete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8520.
Words such as “severe,” “moderate,” and “mild” are not defined in the Rating Schedule.  Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just.  38 C.F.R. § 4.6.  Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue.  Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating.  38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6.
The Veteran contends that her radiculopathy of the right lower extremity warrants a higher rating.  The Veteran’s right lower extremity radiculopathy is currently rated as 20 percent disabling under Diagnostic Code 8520.  38 C.F.R. § 4.124a, DC 8520.
Under DC 8520, a 10 percent rating is warranted for mild incomplete paralysis; a 20 percent rating is warranted for moderate incomplete paralysis; and a 40 percent rating is warranted for moderately severe incomplete paralysis.  A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy.  An 80 percent rating is warranted for complete paralysis.  
The April 2015 VA examination found lumbar radiculopathy in the right lower extremity.  The Veteran reported moderate intermittent pain in the right leg.  The examiner found objective evidence of hypoactive reflexes at the right ankle and decreased light touch sensation in the foot and toes.  The Veteran had normal motor strength in the right leg.  The examiner assessed the Veteran as having moderate incomplete paralysis affecting the right sciatic nerve.  
The July 2015 VA examination found normal motor strength in the right lower extremity, hypoactive reflexes at the right knee, and normal sensation throughout the right leg.  The Veteran reported mild intermittent pain in the right lower extremity.  The examiner confirmed radiculopathy of the right sciatic nerve, but reported no significant effects.
The September 2016 VA examination found full motor strength throughout the right lower extremity, normal reflexes, and normal light touch sensation in the right foot and toes.  The Veteran had decreased sensation to light touch in the right anterior thigh, the thigh and knee area, and the lower leg and ankle area.  A straight-leg raising test was positive for radiculopathy.  The Veteran reported subjective symptoms of severe intermittent pain, moderate paresthesias and dysesthesias, and mild numbness.  The examiner concluded that the Veteran had moderate incomplete paralysis of the right sciatic nerve.
The April 2015, July 2015, and September 2016 VA examination findings were all consistent with moderate incomplete paralysis.  The Board finds that a rating of 40 percent for the Veteran’s right lower extremity lumbar radiculopathy is not warranted.  The medical evidence of record does not show moderately severe incomplete paralysis, or severe incomplete paralysis of the sciatic nerve with marked muscular atrophy.  The VA examiners found the Veteran’s incomplete paralysis to be moderate and there was no evidence of muscular atrophy.  There is no other evidence in the record that notes a moderately severe incomplete paralysis or muscular atrophy.  Therefore, a 40 or 60 percent rating for the Veteran’s right lower extremity sciatica is not warranted.
The Veteran is competent to attest to things she experiences through her senses, such as pain and numbness.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  However, the lay statements do not indicate that the Veteran has moderately severe incomplete paralysis. 
For all the above reasons, a higher disability evaluation for a service-connected right lower extremity radiculopathy is not warranted.  The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.
 
JENNIFER HWA
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	C. Casey, Associate Counsel 

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