INTERVERTEBRAL DISC SYNDROME

A. YAFFE · 2023 · Case ID: 23015867

DENIED

Summary

The veteran, who served in the U.S. Navy from February 1979 to August 1999, appeals the denial of higher disability ratings for his service-connected back condition and bilateral lower extremity radiculopathies. The Board reviewed the veteran's claims under both pre- and post-February 7, 2021, rating criteria. For the back condition, the Board found that the evidence did not support a rating higher than 20 percent for the period of April 30, 2012, to September 18, 2020, as the veteran's forward flexion did not meet the criteria for a 40 percent rating (30 degrees or less flexion) and ankylosis was not present. For the period after September 18, 2020, the Board found the veteran was receiving the maximum evaluation for limitation of motion. Regarding radiculopathy affecting the sciatic nerve, the Board denied higher ratings than the currently assigned 10 percent prior to December 20, 2019, and 20 percent thereafter, finding the evidence did not support moderate incomplete paralysis. For radiculopathy affecting the femoral nerve, the Board found the evidence did not support ratings higher than the currently assigned 20 percent for either extremity, as the symptoms more closely approximated moderate incomplete paralysis rather than severe or complete paralysis. The Board noted that the veteran is already receiving a 100 percent disability rating, and TDIU was not at issue as the veteran remained employed prior to December 20, 2019.

Rationale

Evidence did not show flexion limited to 30 degrees or less.; No evidence of ankylosis or limitation approximating ankylosis.; Veteran received maximum evaluation for limitation of motion after September 18, 2020.

Service Branch

NAVY

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

5237

Docket No.

14-41 004A

Full Decision Text

Citation Nr: 23015867
Decision Date: 03/16/23 Archive Date: 03/16/23

DOCKET NO. 14-41 004A
DATE: March 16, 2023

ORDER

Entitlement to a rating higher than 20 percent for a back disability from April 30, 2012 to September 18, 2020, and higher than 40 percent thereafter, is denied.

Entitlement to a rating higher than 10 percent for right lower extremity radiculopathy affecting the sciatic nerve from April 30, 2012 to December 20, 2019, and higher than 20 percent thereafter, is denied.

Entitlement to a rating higher than 10 percent for left lower extremity radiculopathy affecting the sciatic nerve from April 30, 2012 to December 20, 2019, and higher than 20 percent thereafter, is denied.

Entitlement to a rating higher than 20 percent for right lower extremity radiculopathy affecting the femoral nerve is denied.

Entitlement to a rating higher than 20 percent for left lower extremity radiculopathy affecting the femoral nerve is denied.

FINDINGS OF FACT

1. From April 30, 2012 to September 18, 2020, the Veteran's service-connected back disability was not manifest by forward flexion of the thoracolumbar spine of 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes of intervertebral disc syndrome having a total duration of at least 4 weeks.

2. From September 18, 2020, the Veteran's service-connected back disability was not manifest by unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes of intervertebral disc syndrome having a total duration of at least six weeks and/or a herniated disc with compression or irritation of the nerve root.

3. From April 30, 2012 to December 20, 2019, radiculopathy of the right and left lower extremities resulted in disability analogous to no more than mild incomplete paralysis of the sciatic nerve; after December 20, 2019, it resulted in disability analogous to no more than moderate incomplete paralysis of the sciatic nerves.

4. Prior to December 20, 2019, there was no evidence suggestive of femoral nerve involvement in either extremity; the Veteran's radiculopathy of the right and left lower extremities results in disability analogous to no more than moderate incomplete paralysis of the femoral nerves.

CONCLUSIONS OF LAW

1. From April 30, 2012 to September 18, 2020, the criteria for a disability rating higher than 20 percent for a back disability, and a rating higher than 40 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5237-5243.

2. The criteria for entitlement to a rating higher than 10 percent for right lower extremity radiculopathy affecting the sciatic nerve from April 30, 2012 to December 20, 2019, and higher than 20 percent thereafter, not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a; Diagnostic Code 8520.

3. The criteria for entitlement to a rating higher than 10 percent for left lower extremity radiculopathy affecting the sciatic nerve from April 30, 2012 to December 20, 2019, and higher than 20 percent thereafter, not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a; Diagnostic Code 8520.

4. The criteria for a schedular rating higher than 20 percent for right lower extremity radiculopathy affecting the femoral nerve have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a; Diagnostic Code 8526.

5. The criteria for a schedular rating higher than 20 percent for left lower extremity radiculopathy affecting the femoral nerve have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a; Diagnostic Code 8526.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the U.S. Navy from February 1979 to August 1999.

These matters come before the Board
nerve have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a; Diagnostic Code 8526.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the U.S. Navy from February 1979 to August 1999.

These matters come before the Board of Veterans' Appeals (Board) on appeal from January 2013 and September 2014 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO).

During the pendency of the appeal, an April 2020 rating decision increased the disability ratings for right and left lower extremity radiculopathy with sciatic nerve involvement to 20 percent, effective December 20, 2019. In addition, separate ratings of 20 percent were granted for right and left lower extremity radiculopathy with femoral nerve involvement, effective December 20, 2019. A September 2020 rating decision increased the Veteran's disability rating for his back condition from 20 to 40 percent, effective September 18, 2020.

Because the increased ratings granted by the April 2020 and September 2020 rating decisions do not represent a grant of the maximum benefits allowable, the issues remain in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993).

These issues were remanded by the Board in July 2020, March 2021 and December 2021, for further development.

Initially, the Board finds that the post-Remand development substantially complied with prior Remand directives.

While the VA examinations in December 2012, January 2020, September 2020 and May 2021, did not record the results of motion testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing, the Board finds that there is sufficient evidence to adequately resolve the Veteran's claim. The Board has reached this conclusion because it finds that the January 2022 addressed the Veteran's medical history throughout the period on appeal, and the examination provides all needed information to rate the Veteran's back range of motion findings in accordance with Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016) (i.e., range of motion estimates in both active and passive motion, in weight-bearing and non-weight-bearing) and Sharp v. Shulkin, 29 Vet. App. 26 (2017) (i.e., range of motion estimates during a period of flare-up). See 38 U.S.C. § 5103A(d); Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order). The Board also finds that the post-Remand development substantially complied with the Remand and all identified and available VA and private treatment records were obtained and associated with the record.

Therefore, the Board finds that further delay by remanding these issues to provide the Veteran with a new VA examination, to obtain additional records or for a retrospective opinion that addresses measures of limitation of motion with repeated use over time, flare-ups, passive range of motion and nonweight-bearing prior to January 2021, would result in needless delay, and is unwarranted. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). Further development or analysis does not serve the interests of the Veteran or the VA. There is no indication in this record that another remand of this case will provide more information.

Next, in a July 2022 statement in response to a June 2022 supplemental statement of the case, the Veteran's representative reported that he did not have access to December VA examination reports.
motion and nonweight-bearing prior to January 2021, would result in needless delay, and is unwarranted. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). Further development or analysis does not serve the interests of the Veteran or the VA. There is no indication in this record that another remand of this case will provide more information.

Next, in a July 2022 statement in response to a June 2022 supplemental statement of the case, the Veteran's representative reported that he did not have access to December VA examination reports. As the Veteran's representative already has access to the Veteran's entire electronic claims file, including the VA examination reports identified, via the Veterans Benefits Management System (VBMS), no action is required.

Beyond the above, it is valuable to note that the Veteran has already been found to be 100 percent disabled by VA and is receiving a 100 percent disability at this time.

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. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 (2009).

The assignment of a particular diagnostic code to evaluate a disability is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology.

The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, with or without degenerative arthritis, it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. §§ 4.59; see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that the provisions of 38 C.F.R. § 4.59 are not limited to disabilities involving arthritis).

Moreover, when evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton, 25 Vet. App. at 5. The Court also held in Correia v. McDonald, 28 Vet. App. 158 (2016) 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.

Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance," as defined in 38 C.F.R. §§ 4.40, before
. 158 (2016) 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.

Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the "pain must affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance," as defined in 38 C.F.R. §§ 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (noting that while "pain may cause a functional loss, pain itself does not constitute a functional loss," and, is therefore, not grounds for entitlement to a higher disability rating).

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disability. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id.

If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied.

1. Entitlement to a rating in excess of 20 percent for a back disability from April 30, 2012 to September 18, 2020, and in excess of 40 percent thereafter

2. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy affecting the sciatic nerve from April 30, 2012 to December 20, 2019, and in excess of 20 percent thereafter

3. Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy affecting the sciatic nerve from April 30, 2012 to December 20, 2019, and in excess of 20 percent thereafter

4. Entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy affecting the femoral nerve

5. Entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy affecting the femoral nerve

The Veteran seeks higher disability ratings than those currently assigned for his service connected back disability with bilateral lower extremity radiculopathy.

4. Entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy affecting the femoral nerve

5. Entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy affecting the femoral nerve

The Veteran seeks higher disability ratings than those currently assigned for his service connected back disability with bilateral lower extremity radiculopathy.

Prior to the regulatory change, the rating schedule provided for evaluation of disabilities of the spine under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Intervertebral disc syndrome (IVDS) may alternatively be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Note (6).

As of February 7, 2021, under the amended criteria the criteria for IVDS will be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other diagnoses.

The Veteran's service-connected back disability is currently rated under Diagnostic Codes 5237-5243. The General Rating Formula for Diseases and Injuries of the Spine provides a 20 percent disability rating is assigned for forward 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. A 40 percent rating is warranted where there is forward flexion of the thoracolumbar spine of 30 degrees or less. A higher 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula. In addition, any associated objective neurologic abnormalities are evaluated separately under the appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note 1.

For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The 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. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Rating Formula, Note (2); see also Plate V.

Alternatively, intervertebral disc disease can be evaluated under the Formula for Rating IVDS Based on Incapacitating Episodes. Under that Formula, a 10 percent rating is assigned where intervertebral disc syndrome is manifested by 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 warranted where incapacitating episodes have a total duration of at least two weeks but less than 4 weeks during the past 12 months. A rating of 40 percent is warranted where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A maximum rating of 60 percent is warranted where the evidence reveals incapacitating episodes having a total duration of at least six weeks during the past 12 months. Incapacitating episodes are defined as requiring bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, IVDS Formula.

VA treatment notes in August 2011, recorded complaints of constant pain and stiffness of the back with intermittent pain radiation, paresthesias and numbness. A private treatment report in September 2011 noted mild generalized lumbar spondylosis and convex left scoliosis.

A VA examiner in December 2012, diagnosed lumbar spondylosis, along with a history of strained back after lifting during active service. He required no surgery or other invasive treatment. Treatment consisted of medication and physical
. Incapacitating episodes are defined as requiring bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, IVDS Formula.

A VA examiner in December 2012, diagnosed lumbar spondylosis, along with a history of strained back after lifting during active service. He required no surgery or other invasive treatment. Treatment consisted of medication and physical therapy. The Veteran complained of constant pain and stiffness in the lumbar spine with intermittent pain radiation, paresthesias and numbness. The Veteran endorsed flare-ups, for which he sought treatment five times in the preceding 12 months. Flare-ups lasted a day and were relieved by bed rest. Forward flexion of the thoracolumbar spine was to 75 degrees, with objective evidence of painful motion at 50 degrees. Forward flexion was reduced to 60 degrees with repetitive movement.

Muscle strength was normal at 5/5, bilaterally, with no muscle atrophy. Reflexes and sensation was normal in the lower extremities. Straight leg raising test was negative, bilaterally. The Veteran had intermittent pain (usually dull), paresthesias and/or dysesthesias, and numbness that were moderate, bilaterally. The examiner opined that the Veteran bilateral radiculopathy of the lower extremities that was mild in severity. The examiner noted IVDS with incapacitating episodes of less than one week in the preceding 12 months. The Veteran used a back brace and shoe insert.

A private treatment record in September 2014, noted an assessment of lumbago with radiculopathy. The Veteran reported an exacerbation of his chronic low back pain, which lasted three weeks, following heavy lifting at work. He rated the pain as constant 8 out of 10 with radiation to his lower extremities, right greater than left. On range of motion testing, he related tenderness at flexion and with lateral rotation. Straight leg raise testing was positive for the right lower extremity. Deep tendon reflexes were normal. An assessment of lumbago with radiculopathy was noted. VA treatment notes in November 2011, recorded complaints of left leg numbness.

In April 2015 the Veteran was seen for dull pain in his back that radiated to the leg, which moderately limited activities and was incapacitating at times. The frequency of episodes was daily. A VA physical therapy evaluation report in September 2015, noted radiculopathy manifested by aching, shooting pain and numbness to both lower extremities. In January 2016, the Veteran reported pain in the low back that was constant with prolonged sitting, standing and walking. There was tingling and numbness in both feet. Forward flexion was to 55 degrees.

April 2017 imaging studies showed degenerative disks/osteoarthritis. In May 2017 the Veteran complained of intermittent throbbing low back pain rated as 3/10. His symptoms were aggravated by walking more than one mile, going up stairs, bending and lifting. Flexion was to 90 degrees. Straight leg raising test was positive on both sides.

On VA examination in January 2020, the Veteran complained of achy sharp back pain in the low back that radiated down his left lower extremity mainly and sometimes his right lower extremity. He also reported numbness and tingling in both his legs down to his foot on the left and on the right and sometimes also the left is worse than the right. Treatment consisted of medication and physical therapy. The Veteran endorsed flare-ups productive of decreased ability to bend, lift, walk, stand, squat, kneel and climb. There was objective evidence of moderate localized tenderness or pain on palpation over L1-S1 midline and paravertebral over joints and ligaments. There was no muscle guarding. Forward flexion was to 45 degrees and to 40 degrees with repeated use over time and during flare-ups. There was pain with weight bearing. There was no ankylosis of the spine or IVDS. The Veteran used a cane for ambulation and support, as well as a back brace wraparound, occasionally. Occupationally, the condition was productive of decreased ability to bend, lift more than medium weight, squat, kneel or climb.

Muscle strength was 5/5 throughout
el and climb. There was objective evidence of moderate localized tenderness or pain on palpation over L1-S1 midline and paravertebral over joints and ligaments. There was no muscle guarding. Forward flexion was to 45 degrees and to 40 degrees with repeated use over time and during flare-ups. There was pain with weight bearing. There was no ankylosis of the spine or IVDS. The Veteran used a cane for ambulation and support, as well as a back brace wraparound, occasionally. Occupationally, the condition was productive of decreased ability to bend, lift more than medium weight, squat, kneel or climb.

Muscle strength was 5/5 throughout the lower extremities with no muscle atrophy. Sensation was decreased, bilaterally. Straight leg raise test was negative, bilaterally. There was severe pain in the right lower extremity and moderate pain on the left, with severe left lower extremity paresthesias and/or dysesthesias and numbness and moderate on the right. There was bilateral femoral and sciatic nerve involvement. The examiner characterized the Veteran's radiculopathy as mild, bilaterally. No other neurological abnormalities were noted.

A May 2019 VA treatment note showed forward flexion of the thoracolumbar spine to 60 degrees.

On VA examination in September 2020, the Veteran endorsed flare-ups productive of decreased ability to bend, lift, walk, stand, squat, kneel and climb. There was objective evidence of moderate localized tenderness or pain on palpation over L1-S1. There was muscle guarding resulting in abnormal gait or abnormal spine contour. Forward flexion was to 30 degrees with repeated use over time and during flare-ups. There was pain with weight bearing. There was no ankylosis of the spine or IVDS.

Muscle strength was 5/5 throughout the lower extremities with no muscle atrophy. Sensation was decreased and reflexes were 1+, bilaterally. Straight leg raise test was negative, bilaterally. There was severe pain in the left lower extremity and moderate pain on the right, with moderate paresthesias and/or dysesthesias and numbness, bilaterally. There was bilateral femoral and sciatic nerve involvement. The examiner characterized the Veteran's radiculopathy as mild, bilaterally. No other neurological abnormalities were noted. Occupationally, the condition was productive of decreased ability to bend more than infrequent to occasional, lift more than medium weight no more than occasional or squat, kneel or climb more than infrequent.

Concerning a retrospective medial opinion regarding the severity of the Veteran's back disability with related radiculopathies, the VA examiner noted that such was not possible based on the information because it would be purely speculative to comment on examination findings reported eight years earlier.

On VA examination in May 2021, the Veteran reported sharp low back pain with tingling and numbness. He endorsed flare-ups every other day, lasting 30 minutes, productive of decreased ability to bend, lift, sit, walk, stand and climb. Forward flexion was to 30 degrees with repeated use over time and 25 degrees during flare-ups. Passive range of motion was not tested as it could compromise Veteran's safety. There was pain with weight bearing.

Muscle strength was 4/5 in the knees, otherwise it was 5/5 throughout the lower extremities with no muscle atrophy. Sensation was decreased and reflexes were 1+ at the ankles, bilaterally. Straight leg raise test was positive, bilaterally. There was constant moderate pain, mild paresthesias and/or dysesthesias and moderate numbness, bilaterally. There was bilateral femoral and sciatic nerve involvement. No other neurological abnormalities were noted. There was no ankylosis of the spine or IVDS. The Veteran used a cane and a brace. Occupationally, the condition was productive of decreased ability to walk, sit or stand for short periods of time.

On VA examination in January 2022, the Veteran stated that he could not walk more than half a mile without much pain on lower extremities and back. The Veteran endorsed daily or weekly flare-ups that ranged from mild to severe and lasted minutes to hours. The back flare-ups were precipitated by bending, lifting, stooping and chores, and were alleviated by heating pads, ice packs, and rest. During flare-ups, he was unable to perform household chores, lift, stoop, or walk long distances. Examination showed no localized tenderness, guarding or muscle spas
Veteran used a cane and a brace. Occupationally, the condition was productive of decreased ability to walk, sit or stand for short periods of time.

On VA examination in January 2022, the Veteran stated that he could not walk more than half a mile without much pain on lower extremities and back. The Veteran endorsed daily or weekly flare-ups that ranged from mild to severe and lasted minutes to hours. The back flare-ups were precipitated by bending, lifting, stooping and chores, and were alleviated by heating pads, ice packs, and rest. During flare-ups, he was unable to perform household chores, lift, stoop, or walk long distances. Examination showed no localized tenderness, guarding or muscle spasms. Forward flexion was to 60 degrees with repeated use over time and during flare-ups. Passive range of motion was the same. There was pain with weight bearing, non weight-bearing, active motion, passive motion and on rest/non-movement. There was no ankylosis of the spine or IVDS.

Muscle strength was 5/5 throughout the lower extremities with no muscle atrophy. Sensation and reflexes were normal, bilaterally. Straight leg raise test was negative, bilaterally. There was intermittent moderate pain, moderate paresthesias and/or dysesthesias and moderate numbness, bilaterally. There was bilateral femoral and sciatic nerve involvement. No other neurological abnormalities were noted. The Veteran did not require assistive devices for ambulation. Occupationally, the condition was productive of decreased ability to walk more than half a mile without much pain in lower extremities and back, and it impaired his ability to climb and lift. Reportedly, he missed work as a result of being incapacitated from his back pain about four times a year for two days at a time.

The examiner noted that the September 2020 VA examination was medically consistent with the Veteran's statements describing functional loss during flare ups, with forward flexion to 25 degrees due to pain. The examiner noted that the Veteran developed radiculopathy of the left and right lower extremities. Radiculopathy was caused by compression, inflammation and/or injury to a spinal nerve root in the low back, which was not shown in imaging studies of the Veteran's spine, including a February 2016 MRI.

Initially, the Board notes that while the VA examiner in December 2012 noted IVDS, the remainder of the evidence of record, including VA examination reports in 2020, 2021 and 2022, affirmatively found no evidence of IVDS. In any event, the evidence does not show, nor has the Veteran reported, physician-prescribed bed rest or incapacitating episodes as defined by VA regulation, lasting a total of at least four weeks during any given 12 months period, and/or a herniated disc with compression or irritation of the nerve root. Thus, considering both the pre- and post-February 7, 2021 Diagnostic Code 5243, the medical and lay evidence of record does not show that the Veteran is entitled to a higher disability rating under Diagnostic Code 5243 for IVDS. 38 C.F.R. § 4.71a, Diagnostic Code 5243.

Pertaining to limitation of motion, the Board finds that the record is adequate to address the concerns raised by the Court holdings in Sharp and Correia. Specifically, the Board finds that from April 30, 2012 to September 18, 2020, the pre- and post-Remand VA examinations dated in December 2012 and January 2020 provided VA with medical opinions evidence adequate to rate the Veteran's back when considering his complaints of pain with weight bearing and active range of motion as well as during flare-ups because the examiners specifically addressed these concerns.

Here, from April 30, 2012 to September 18, 2020, the range of motion findings detailed above, do not show limitation so severe as to meet the criteria for the next higher rating of 40 percent. To warrant a 40 percent rating, there must be evidence of limitation of flexion to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. Prior to September 18, 2020, recorded range of motion findings showed the Veteran's flexion was noted, at worst, to 40 degrees with repetitive use over time and on flare-ups pain. There is no evidence that his forward flexion of the lumbar spine was limited to 30 degrees. See DeLuca, 8 Vet. App. at 207; see also Mitchell, 25 Vet. App
rating of 40 percent. To warrant a 40 percent rating, there must be evidence of limitation of flexion to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. Prior to September 18, 2020, recorded range of motion findings showed the Veteran's flexion was noted, at worst, to 40 degrees with repetitive use over time and on flare-ups pain. There is no evidence that his forward flexion of the lumbar spine was limited to 30 degrees. See DeLuca, 8 Vet. App. at 207; see also Mitchell, 25 Vet. App. at 32; Correia, 28 Vet. App. at 158; Sharp, 29 Vet. App. at 26. Further, there was no evidence of ankylosis or any limitation of motion that reasonably approximated ankylosis. Therefore, the Board finds that a rating in excess of 20 percent is not warranted. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242.

Since September 18, 2020, the Veteran is in receipt of the maximum evaluation available for limitation of motion of the spine under the rating schedule, 38 C.F.R. §§ 4.40, 4.45, and 4.59 are not applicable. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Also, a 40 percent rating is assigned for favorable ankylosis. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). Thus, the 40 percent rating contemplates any episodes in which the Veteran's disability is so severe that he cannot move his back.

The Board also finds, however, that the evidence of record is against a finding that the Veteran has had ankylosis at any time. The Board notes that ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Dorland's Illustrated Medical Dictionary 93 (30th ed. 2003). See also 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, NOTE (5) (defining ankylosis as fixation of a joint in a particular position). In this case, no examinations have indicated that the Veteran has ankylosis, and as the evidence shows the Veteran has movement in his thoracolumbar spine, it follows that the thoracolumbar spine is not ankylosed. Thus, the next higher rating of 50 percent is not warranted.

In addition to considering the orthopedic manifestations of a back disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code.

A January 2013 rating decision granted separate disability ratings for right and left lower extremity radiculopathy with sciatic nerve involvement and assigned separate 10 percent disability ratings under Diagnostic Code 8520, effective April 30, 2012. An April 2020 rating decision increased the disability ratings for right and left lower extremity radiculopathy with sciatic nerve involvement to 20 percent under Diagnostic Code 8520, effective December 20, 2019. In addition, separate ratings of 20 percent were granted for right and left lower extremity radiculopathy with femoral nerve involvement, effective December 20, 2019. There is no evidence suggestive of femoral nerve involvement prior to the date of this award.

Disability ratings for the nerves, are found at 38 C.F.R. § 4.124a. Diagnostic Code 8520 pertains to the sciatic nerve and provides for a 10 percent rating for mild incomplete paralysis. A 20 percent rating is warranted for moderate incomplete paralysis. A 40 percent rating is warranted for moderately severe incomplete paralysis. A 60 percent rating is warranted for severe incomplete paralysis with marked muscle atrophy. An 80 percent rating is warranted for complete paralysis of the nerve (the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost). 38 C.F.R. § 4.120 provides that when rating peripheral nerve injuries and residuals, the rater should consider the relative impairment of motor function, trophic changes, and/or sensory disturbances.
the sciatic nerve and provides for a 10 percent rating for mild incomplete paralysis. A 20 percent rating is warranted for moderate incomplete paralysis. A 40 percent rating is warranted for moderately severe incomplete paralysis. A 60 percent rating is warranted for severe incomplete paralysis with marked muscle atrophy. An 80 percent rating is warranted for complete paralysis of the nerve (the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost). 38 C.F.R. § 4.120 provides that when rating peripheral nerve injuries and residuals, the rater should consider the relative impairment of motor function, trophic changes, and/or sensory disturbances. Attention should be given to the site and character of the injury. 38 C.F.R. § 4.124a.

Under Diagnostic Code 8526, mild incomplete paralysis of the femoral nerve is rated 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; severe incomplete paralysis is rated 30 percent disabling; and complete paralysis is rated 40 percent disabling.

The words "mild," "moderate," "moderately severe," and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6; Spellers v. Wilkie, 30 Vet. App. 157 (2018).

Although the rating criteria do not define "mild," "moderate," and "severe" according to MERRIAM WEBSTER, "mild" means" gentle in nature or behavior" or "not being or involving what is extreme." See www.merriam-webster.com/dictionary/mild. "Moderate" means "tending toward the mean or average amount or dimension" or "limited in scope or effect." "Severe" means "very painful or harmful" or "of a great degree." See www.merriam-webster.com/dictionary/severe (last accessed March 8, 2023). It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating.

The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture 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, Diseases of the Peripheral Nerves.

As noted, the evidence above shows that the Veteran's right and left lower extremity neurological symptoms have been found to affect multiple additional nerves in mild to moderate degrees of severity. Specifically, the VA examiner in January 2020 noted incomplete paralysis of both sciatic and the anterior crural (femoral) nerves.

There are five nerve branches in the lower extremities. Each branch has its separate and distinct functions. The sciatic branch includes the sciatic nerve, external popliteal nerve (common peroneal), musculocutaneous (superficial peroneal), anterior tibial nerve (deep peroneal), internal popliteal (tibial), and posterior tibial nerves. The femoral branch includes the anterior crural (femoral) and the internal saphenous nerves. The obturator, external cutaneous thigh, and ilio-inguinal nerve branches only include one nerve each.

As the sciatic and femoral nerves are part of different nerve branches and affect the different general functions, it is not pyramiding to assign separate ratings for such disabilities. 38 C.F.R. § 4.14; Esteban, supra.

The evidence above shows that from April 30, 2012 to December 20, 2019, the Veteran's bilateral lower extremity neurological symptoms were found to be consistent with no more than mild incomplete paralysis of the sciatic nerves. A VA examiner in December 2012, muscle strength was normal at 5/5, bilaterally, with no muscle atrophy. Reflexes and sensation were normal in the lower extremities. Straight leg raising test negative both sides. The Veteran had moderate symptoms of radicular intermittent pain, paresthesias and/or dysesthesias and numbness, bilaterally. The examiner opined that the Veteran bilateral radiculopathy of the lower extremities was mild in severity. In 2014, straight leg raise was positive on the right and in 2017 straight leg raising test was positive on both sides. However, deep tendon reflexes were normal there was no muscle atrophy and muscle strength was normal. Moreover, the VA examiner in 2022, reviewed the evidence of record prior to 2020, and noted that while the Veteran had developed radiculopathy of the left and right lower extremities during this period, imaging studies, to include a 2016 MRI, failed to document objective findings known to cause radiculopathy such as compression, inflammation and/or injury to a spinal nerve root in the low back. Accordingly, the Board finds that the Veteran's sciatic nerve impairment from April 30, 2012 to December 20, 2019, was wholly sensory, as the Veteran was not found to have any problems with motor functioning or atrophy, or any non-sensory symptoms associated with neurological impairment.

From January 2020, the Veteran complained of mild to severe symptoms of pain, numbness and tingling in both legs. Muscle strength at times was normal and at other times reduced. There was no muscle atrophy. Sensation was decreased, bilaterally. Straight leg raise test was positive, bilaterally, in May 2021, otherwise it was negative. In January 2020 and September 2020, the Veteran's bilateral radiculopathy of the femoral and sciatic nerves was characterized as mild.

Accordingly, as moderate incomplete paralysis of the sciatic nerve was not shown from April 30, 2012 to December 20, 2019, and as moderately severe incomplete paralysis was not shown thereafter, disability ratings higher than 10 percent for radiculopathy of the right and left lower extremity prior to September 20, 2019, and 20 percent, thereafter, are not warranted under Diagnostic Code 8520. Similarly, as the evidence does not show complete paralysis and the Veteran has not described severe symptoms related to his femoral nerve, the Board finds that his symptoms more closely approximate moderate. Therefore, the Board finds that the criteria for disability ratings higher than the currently assigned separate 20 percent ratings for femoral nerve right and left lower extremity radiculopathy, is not warranted under Diagnostic Code 8526. See 38 C.F.R. § 4.124a.

The remainder of the medical records does not confirm the presence of any neurological abnormalities shown to be associated with the back disability, other than the separately rated bilateral lower extremity radiculopathies.

For the above reasons, the evidence is neither evenly balanced nor approximately so, as to warrant a rating higher than 20 percent for the back disability from April 30, 2012 to September 18, 2020, or a rating higher than 40 percent thereafter. Additionally, the evidence does not support evaluations higher than the 10 percent for right and left lower extremity radiculopathy affecting the sciatic nerves from April 30, 2012 to December 20, 2019, or higher disability ratings than 20 percent thereafter. Finally, the evidence weighs against the assignment of higher disability ratings than 20 percent for femoral nerve radiculopathy of the right and left lower extremities. 38U.S.C. §5107 (b), 38 C.F.R. § 4.3, is therefore not for application in this regard. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side, or another is the benefit of the doubt doctrine not for application).

The Board notes that a TDIU claim is considered part and parcel of his claims for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Since December 20, 2019, the Veteran has had a combined disability rating of 100 percent.
38U.S.C. §5107 (b), 38 C.F.R. § 4.3, is therefore not for application in this regard. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side, or another is the benefit of the doubt doctrine not for application).

The Board notes that a TDIU claim is considered part and parcel of his claims for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Since December 20, 2019, the Veteran has had a combined disability rating of 100 percent. Prior to December 20, 2019, there is no evidence or argument even suggesting that the Veteran's back disability with associated radiculopathies actually or effectively rendered him unemployable at any pertinent point, and the evidence shows that prior to December 20, 2019, the Veteran remained employed. As such, the matter of his entitlement to a TDIU due has not been raised in conjunction with the current claims and need not be addressed herein.

A. Yaffe

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Azizi, T.

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.

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