INTERVERTEBRAL DISC SYNDROME

K. MILLIKAN · 2023 · Case ID: 23053077

MIXED

Summary

The veteran, who served in the U.S. Navy from July 1969 to December 1971 aboard the U.S.S. Midway during the Vietnam War, appeals the denial of increased ratings for his service-connected lumbar spine disorder and left lower extremity radiculopathy (femoral and sciatic nerves). The Board denied entitlement to ratings higher than 20 percent for the lumbar spine disorder, finding that the evidence did not support incapacitating episodes requiring bed rest or ankylosis of the spine, and that the Veteran's functional limitations were contemplated by the current 20 percent rating. For the left lower extremity radiculopathy, the Board found the evidence persuasively weighed against ratings higher than mild incomplete paralysis for the sciatic nerve and moderate incomplete paralysis for the femoral nerve prior to March 2, 2021, and from that date forward. The Board acknowledged the Veteran's reports of pain, numbness, and functional limitations, but found the evidence did not support the severity claimed or the conclusions of private medical opinions suggesting more severe impairment. The case is remanded for further development regarding entitlement to service connection for ischemic heart disease, to include as due to herbicide exposure or secondary to his service-connected lumbar spine and radiculopathy conditions. Entitlement to TDIU is also remanded due to its intertwinement with the heart condition claim.

Rationale

Evidence does not support incapacitating episodes requiring bed rest for higher rating.; Evidence does not support ankylosis of the spine.; Functional limitations are contemplated by current 20% rating.

Service Branch

NAVY

Special Benefit

TDIU

Docket No.

15-18 495A

Full Decision Text

Citation Nr: 23053077
Decision Date: 09/23/23 Archive Date: 09/23/23

DOCKET NO. 15-18 495A
DATE: September 23, 2023

ORDER

Entitlement to an initial rating greater than 20 percent for service-connected lumbar strain with scoliosis, degenerative joint disease, degenerative disc disease, and intervertebral disc syndrome (lumbar spine disorder) is denied.

Entitlement to an initial rating greater than 10 percent prior to March 2, 2021, for left lower extremity femoral radiculopathy is denied.

Entitlement to an initial rating greater than 20 percent from March 2, 2021, for left lower extremity femoral radiculopathy is denied.

Entitlement to an initial rating greater than 20 percent for left lower extremity sciatic radiculopathy is denied.

REMANDED

Entitlement to service connection for ischemic heart disease, to include as due to exposure to herbicide agents and/or secondary to service-connected lumbar spine disorder and left lower extremity femoral and sciatic radiculopathy, is remanded.

Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.

FINDINGS OF FACT

1. The Veteran's lumbar spine disability is manifest by pain limiting motion to no less than 35 degrees of forward flexion and causing an intermittent antalgic gait and difficulty with extended standing and walking.

2. Prior to March 2, 2021, the Veteran left lower extremity radiculopathy of the femoral nerve is manifest by no more than mild incomplete paralysis.

3. From March 2, 2021, the Veteran left lower extremity radiculopathy of the femoral nerve is manifest by no more than moderate incomplete paralysis.

4. The Veteran left lower extremity radiculopathy of the sciatic nerve is manifest by no more than mild incomplete paralysis.

CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 20 percent for lumbar spine disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243.

2. Prior to March 2, 2021, the criteria for a disability rating in excess of 10 percent for left lower extremity femoral nerve radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8526.

3. From March 2, 2021, the criteria for a disability rating in excess of 20 percent for left lower extremity femoral nerve radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8526.

4. The criteria for a disability rating in excess of 20 percent for left lower extremity sciatic nerve radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active service in the United States Navy from July 1969 to December 1971, with service aboard the U.S.S. Midway during the Vietnam War. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran and his spouse testified before the undersigned at a Board hearing in October 2018.

The Board remanded the above issues in January 2020. The matter again is before the Board.

In a September 2021 rating decision, the RO granted an increased 20 percent rating for left lower extremity radiculopathy involving the femoral nerve, effective March 2, 2021. As this grant did not represent a complete grant of benefits, the issue both prior and subsequent to that date remain before the Board.

Increased Rating

1. Entitlement to an initial rating greater than 20 percent for lumbar spine disorder

2. Entitlement to an initial rating greater than 10 percent prior to March 2, 2021, for left lower extrem
hearing in October 2018.

The Board remanded the above issues in January 2020. The matter again is before the Board.

Increased Rating

1. Entitlement to an initial rating greater than 20 percent for lumbar spine disorder

2. Entitlement to an initial rating greater than 10 percent prior to March 2, 2021, for left lower extremity femoral radiculopathy

3. Entitlement to an initial rating greater than 20 percent from March 2, 2021, for left lower extremity femoral radiculopathy

4. Entitlement to an initial rating greater than 20 percent for left lower extremity sciatic radiculopathy

The Veteran contends that higher ratings are warranted for his service-connected lumbar spine and left lower radiculopathy disabilities.

A February 2012 VA back examination report included the Veteran's report of chronic back pain, with increased frequency and intensity of back pain and numbness in the left lower extremity. The back pain was from 3 to 9 out of 10. The pain occurred with sitting or standing and the Veteran had to change positions to alleviate the pain. The Veteran had severe flare-ups every month and would last for hours. Range of motion testing showed forward flexion to 80 degrees, with pain onset at 60 degrees; extension to 25 degrees, with pain onset at 10 degrees; right lateral flexion to 20 degrees, with pain onset at 15 degrees; left lateral flexion to 20 degrees, with pain onset at 20 degrees; right lateral rotation to 30 degrees or more, with pain onset at 30 degrees or more; and left lateral rotation to 30 degrees or more, with pain onset at 20 degrees. With repetitive motion testing forward flexion was decreased to 75 degrees, with no loss of motion in the other planes of motion.

There was functional loss due to less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, instability of station, disturbance of locomotion, and interference with sitting, standing, and/or weight-bearing. The Veteran had guarding that resulted in abnormal gait and abnormal spinal contour. The Veteran had normal right lower extremity muscle strength and left lower extremity muscle strength that was normal in the ankle, but decreased to 4 out of 5 in great toe extension, hip flexion, and knee extension. The Veteran had normal bilateral knee reflexes and absent bilateral ankle reflexes. The Veteran had decreased sensation in the right upper anterior thigh and thigh/knee, but otherwise was normal in the bilateral extremities. Straight leg raising tests were positive bilaterally. The Veteran had intermittent pain that was mild in the right lower extremity and severe in the left lower extremity, as well as mild right lower extremity paresthesias and/or dysesthesias and moderate numbness. The examiner concluded that the Veteran's left lower extremity radiculopathy was moderate in severity. The Veteran had no associated neurologic abnormalities. He had IVDS and had associated symptoms requiring prescribed bed rest and treatment by a physician of less than 1 week. The Veteran did not use any assistive devices. The Veteran had spinal scoliosis that was estimated at 30 degrees of lower thoracic dextroscoliosis. The Veteran had problems walking more than a quarter mile without moderate to severe back pain with left lower extremity radiculopathy. Generally, the Veteran could relieve the back pain by stopping walking and resting his weight in a forward flexed position. He typically could sit as much as necessary, as long as he was able to shift his weight as needed. His greatest difficulty with sitting was on airplanes and the Veteran required an aisle seat to allow him to stand as needed. The Veteran could lift 10 pounds once and pull a lap top bag and put the 10 pound bag in the overhead airplane compartment. The Veteran had missed approximately 10 days of work and often rescheduled appointments or go in late for work, as needed.

In March 2013, private chiropractic records documented severe loss of motion and indicated that the Veteran could not exercise due to his low back pain.

A February 2014 letter from a private physician indicated that the Veteran had very limited motion in the thoracolumbar spine. The Veteran had very limited range of motion of the low back, with unfavorable anky
difficulty with sitting was on airplanes and the Veteran required an aisle seat to allow him to stand as needed. The Veteran could lift 10 pounds once and pull a lap top bag and put the 10 pound bag in the overhead airplane compartment. The Veteran had missed approximately 10 days of work and often rescheduled appointments or go in late for work, as needed.

In March 2013, private chiropractic records documented severe loss of motion and indicated that the Veteran could not exercise due to his low back pain.

A February 2014 letter from a private physician indicated that the Veteran had very limited motion in the thoracolumbar spine. The Veteran had very limited range of motion of the low back, with unfavorable ankylosis of the entire thoracolumbar spine. He could not ambulate well without the assistance of a cane. The Veteran could not stand or sit for extended periods of time. Forward flexion was to 35 degrees, rotation to less than 30 degrees, and extension to 15 degrees. The Veteran described back pain that was 8 to 9 out of 10. The pain required assistance with bathing and toileting and impacting control of bodily functions. The Veteran reported loss of erectile functioning sufficient for intercourse. The Veteran had obtained a disability permit from the state due to his inability to sit or stand for extended periods. The Veteran had been unable to maintain an exercise program due to the back pain. The Veteran's radiculopathy also was worsening and the examiner estimated the severity as moderately severe. The radiculopathy symptoms worsened with sneezing and coughing.

In October 2014, the Veteran reported symptoms of tingling in the legs for 30 years that would go away when moving the legs, but returned when he stopped moving the legs.

A March 2015 private physician letter discussed the findings of the prior February 2014 private evaluation of the spine. The physician concluded that the totality of the records indicated that the Veteran's low back disability was worsening. The Veteran was unable to walk 200 feet without stopping to rest and needed assistance walking. The Veteran's left lower extremity radiculopathy also provided significant problems affecting functioning.

The Veteran was afforded a VA examination in May 2015. The Veteran reported chronic, intermittent low back pain. He could not stand for more than a few minutes and walking was slow and careful. The back pain had increased in frequency and intensity, as well as left lower extremity numbness and decreased sensation. The back pain fluctuated between 3 and 9 out of 10. The back pain worsened with prolonged sitting or standing. The back and left lower extremity symptoms prevented him from golfing (he used to golf 3 to 4 times per week); he could no longer push a lawnmower or pull weeds; and he could not walk up a 3 percent grade without severe low back pain. The symptoms had severely worsened over the past 3 years. The Veteran denied flare-ups of back pain. Range of motion testing showed forward flexion to 80 degrees, extension to 30 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 30 degrees. There was no further loss of motion with repetitive use testing. The Veteran had guarding that did not result in an abnormal gait or abnormal spinal contour. Right and left lower extremity muscle strength was normal and there was no muscle atrophy. The Veteran had normal reflexes bilaterally. The Veteran had decreased sensation in the left lower extremity in all areas except the thigh / knee. The Veteran had mild, constant pain in the left lower extremity, as well as mild paresthesias and/or dysesthesias and numbness. The Veteran had mild radiculopathy affecting the left femoral and sciatic nerves. The Veteran had no ankylosis. The Veteran had IVDS, but no symptoms due to IVDS that required bed rest prescribed by a physician. The Veteran had no neurologic abnormalities associated with the back disability. The Veteran occasionally used a cane for assistance. The Veteran stated that he no longer could golf due to low back pain. Walking even short distances or up a grade caused severe pain.

A May 2015 VA peripheral nerves examination included the above findings, as well as decreased sensation in the entire left lower extremity. The Veteran had trophic changes, including swollen, discolored, and hairless bilateral lower extremities. The Veteran had a normal gait. The Veteran had mild, incomplete paralysis of the left sciatic nerve. In February 2016, the Veteran received a scooter to assist in ambulation.

physician. The Veteran had no neurologic abnormalities associated with the back disability. The Veteran occasionally used a cane for assistance. The Veteran stated that he no longer could golf due to low back pain. Walking even short distances or up a grade caused severe pain.

During his October 2018 Board hearing, the Veteran reported that he could walk little more than 100 feet due to back pain. At that point, he would need to lean on something or sit down. Due to these limitations, he used a scooter. The Veteran's symptoms worsened every year. During meetings he would have to stand up to relieve his back pain. The Veteran had tried to use a cane, but that had been ineffective. The Veteran now used a scooter. As to the radiculopathy, during flare-ups of sciatica the Veteran could not move. The pain was worse than when he had kidney stones. The flare-ups occurred about once a month and lasted for several days. Carrying groceries and other activities were difficult.

In November 2019, the Veteran denied any falls in the last 3 months. He did not have an impaired gait.

A March 2, 2021, VA examination report included the Veteran's reports of ongoing back and leg pain. He could only stand or walk for a few minutes. The Veteran described flare-ups of extreme low back pain that lasted until he would sit or lie down. The flare-ups were caused by normal standing or walking. The functional loss was that he could not perform most activities when flare-ups occurred. The Veteran had difficulty bending over to pick up things, reaching, or standing or walking for extended periods of time. Range of motion testing of the spine showed forward flexion to 40 degrees, extension to 0 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation to 20 degrees. Passive range of motion testing was not accomplished because it was not medically appropriate to inflict pain on examination. There was no further loss of motion with repetitive motion testing. The examiner estimated that with repeated use over time and during flare-ups forward flexion would be decreased to 35 degrees and right and left lateral rotation to 15 degrees, with the other arcs of motion the same. Right lower extremity muscle strength was normal and left lower extremity muscle strength was decreased to 4 out of 5 with respect to all muscle groups. There was no muscle atrophy. The Veteran had normal bilateral lower extremity reflexes. Sensory examination showed normal right lower extremity sensation and decreased sensation in the left lower extremity. Right leg raising testing was negative and left leg testing was positive. The Veteran reported moderate intermittent pain, paresthesias and/or dysesthesias, and numbness. The Veteran did not have ankylosis of the spine. The Veteran had IVDS, but the condition did not result in episodes of prescribed bed rest in the previous 12 months. The Veteran did not report using any assistive devices as a normal mode of locomotion. The Veteran's back and radiculopathy disabilities affected his ability to perform occupational tasks, in that he had difficulty bending over to pick up things, reaching, or standing or walking for extended periods of time.

A March 2, 2021, VA peripheral nerves examination report indicated that due to severe back and leg pain the Veteran could not stand for more than 3 or 4 minutes or walk. The Veteran reported moderate intermittent pain, paresthesias and/or dysesthesias, and numbness in the left lower extremity. Left lower extremity muscle strength was 4 out of 5. The Veteran had normal left lower extremity reflexes, but decreased sensation. The Veteran had no trophic changes. He walked with an antalgic gait, favoring the left side, due to the lumbar radiculopathy. The Veteran had moderate, incomplete paralysis of the left sciatic and anterior crural (femoral) nerves. The effect of the left lower extremity radiculopathy on the Veteran's ability to work resulted in difficulty walking and standing for long periods of time. He also had trouble navigating stairs and uneven territory due to increased pain with prolonged weight-bearing
ness in the left lower extremity. Left lower extremity muscle strength was 4 out of 5. The Veteran had normal left lower extremity reflexes, but decreased sensation. The Veteran had no trophic changes. He walked with an antalgic gait, favoring the left side, due to the lumbar radiculopathy. The Veteran had moderate, incomplete paralysis of the left sciatic and anterior crural (femoral) nerves. The effect of the left lower extremity radiculopathy on the Veteran's ability to work resulted in difficulty walking and standing for long periods of time. He also had trouble navigating stairs and uneven territory due to increased pain with prolonged weight-bearing.

In May 2021, the Veteran reported that using his mobility scooter increased his back pain markedly. The Veteran had stopped driving and used the mobility scooter to get around his neighborhood. The Veteran would walk for short distances, but otherwise used a scooter for mobility.

Lumbar Spine Disorder

The Veteran's lumbar strain with scoliosis, degenerative joint disease, degenerative disc disease, and intervertebral disc syndrome is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243, for intervertebral disc syndrome (IVDS). Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25.

Effective February 7, 2021, Diagnostic Code 5243 was amended to read: "Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other disc diagnoses." The rating criteria itself, however, remained unchanged.

The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes.

Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1.

Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is warranted 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 for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating 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. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine.

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 defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5.

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section
abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1.

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria.").

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).

The Board finds that the evidence of record persuasively weighs against a rating in excess of 20 percent for the lumbar spine disability based on incapacitating episodes. The Veteran has IVDS, but the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. The VA examinations have found that he does not meet the criteria for prescribed bed rest sufficient to warrant a higher rating under Diagnostic Code 5243. The Veteran's lay statements do not suggest otherwise.

The evidence of record also persuasively weighs against a rating in excess of 20 percent for the lumbar spine disability under the General Rating Criteria. The Board acknowledges the Veteran's lay reports of symptoms and included difficulty bending over to pick up things, reaching, or standing or walking for extended periods of time. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Even considering loss of motion with repetitive motion over time and/or with flare-ups indicates forward flexion no less than 35 degrees. The Board acknowledges the February 2014 private physician's letter indicating that the Veteran had unfavorable ankylosis of the thoracolumbar spine, but even at that time he maintained forward flexion to 35 degrees with additional motion in extension to 15 degrees and bilateral rotation to less than 30 degrees. Thus, the Veteran clearly did not have ankylosis (as noted above, immobility and consolidation of a joint due to disease, injury, or surgical procedure) even at the time of examination. As such, the evidence is against finding ankylosis of the spine.

Regarding neurological impairment, the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability other than the service-connected left lower extremity radiculopathy discussed in greater detail below. The above February 2014 private physician's letter suggested erectile dysfunction and problems with bodily functions due to the low back disability, but this conclusion is not supported by the prior or subsequent lay and medical evidence of record. Medical records document erectile dysfunction, but the above medical examination reports have universally found no association between the low back disability and any
disease, injury, or surgical procedure) even at the time of examination. As such, the evidence is against finding ankylosis of the spine.

Regarding neurological impairment, the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability other than the service-connected left lower extremity radiculopathy discussed in greater detail below. The above February 2014 private physician's letter suggested erectile dysfunction and problems with bodily functions due to the low back disability, but this conclusion is not supported by the prior or subsequent lay and medical evidence of record. Medical records document erectile dysfunction, but the above medical examination reports have universally found no association between the low back disability and any erectile dysfunction. As the greater weight of the evidence persuasively weighs against finding that the Veteran has any neurologic abnormality associated with his service-connected low back disability other than the left lower extremity radiculopathy adjudicated below, the Board finds that no additional rating for a neurologic abnormality is warranted.

The Board notes that the Veteran's functional loss was considered, as the medical evidence shows that the Veteran has consistently complained of pain in the back. 38 C.F.R. §§ 4.40, 4.45. The evidence indicates that the Veteran has had ranges of motion on testing that are consistent with the current rating assigned for the entire period on appeal. Repetitive motion testing has not shown any increased loss of motion on repetition to the point that a higher rating would be warranted and there is no evidence of muscle atrophy. The current rating assigned contemplates the Veteran's pain and associated difficulties. The current evaluation contemplates limitation of flexion to 31 degrees, based on additional functional limitations. In order to warrant a higher evaluation flexion must be functionally limited to 30 degrees or less. See DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Neither the lay nor medical evidence establishes that flexion is functionally limited to 30 degrees or less due to any factor.

To the extent that the Veteran experiences problems with extended walking and requires the use of an assistive device due to chronic low back pain, such limitation is contemplated in the currently assigned 20 percent rating.

Based on the foregoing, the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 20 percent for his lumbar spine disability. As the evidence of record persuasively weighs against a rating in excess of 20 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7.

Left Lower Extremity Radiculopathy (Femoral and Sciatic Nerves)

Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720.). Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a.

Diagnostic Code 8526 provides ratings for paralysis of the anterior crural (femoral) nerve. Diagnostic Code 8526 provides that mild incomplete paralysis is rated 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; and severe incomplete paralysis is rated 30 percent disabling. Complete paralysis of the quadriceps extensor muscles is rated 40 percent disabling.

The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124.

The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis
of the quadriceps extensor muscles is rated 40 percent disabling.

The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of 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 is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017).

Regarding impairment of motor functions, the February 2012 VA examination showed left lower extremity muscle strength that was normal in the ankle, but decreased to 4 out of 5 in great toe extension, hip flexion, and knee extension. during the appeal period showed normal muscle strength, while the February 2019 VA examination showed muscle strength that varied from 4 out of 5 to 5 out of 5 in the lower extremities. In May 2015, the Veteran had normal left lower extremity muscle strength on examination. During the March 2021 examination, the Veteran's left lower extremity muscle strength was decreased to 4 out of 5 in all muscle groups.

Regarding trophic changes, the Veteran had no trophic changes during the relevant time period except during the May 2015 VA examination, when he had swollen, discolored, and hairless bilateral lower extremities.

Regarding sensory disturbance, during the May 2015 and March 2021 VA examinations the Veteran had decreased sensation in all areas of the left lower extremity.

Regarding loss of reflexes, in February 2012 the Veteran had normal left knee reflexes and absent left ankle reflexes. In May 2015 and March 2021, the Veteran had normal reflexes.

Regarding pain, in February 2012 the Veteran had intermittent severe pain in the left lower extremity. In February 2014, the Veteran had worsening left lower extremity radicular pain. In May 2015, the Veteran reported mild, constant left lower extremity pain. In March 2021, the Veteran described moderate, intermittent pain in the left lower extremity.

Regarding muscle atrophy, the Veteran had no muscle atrophy during the relevant time period.

Regarding complete paralysis, the Veteran retained the ability to use all joints in the left lower extremities with certain limitations discussed above. There is no lay or medical evidence consistent with a finding of complete paralysis of any part of either lower extremity.

Based on the above, the Board finds that the lower extremity disabilities are primarily manifest by slight impairment of motor functions, as well as sensory disturbance, intermittent loss of reflexes, ongoing numbness and tingling, and intermittent and/or constant pain. The Board also finds that the most probative evidence of record is against a finding during the relevant time period that the disabilities were manifested by muscle atrophy or complete paralysis. The Board thus finds that the level of impairment is most analogous to mild incomplete paralysis of the sciatic nerve for the entire appellate time period and femoral nerve prior to March 2, 2021. The evidence is persuasively against finding of more than moderate, incomplete paralysis of the femoral nerve from March 2, 2021.

The Board has considered the February 2014 private physician's conclusion that the Veteran's left lower extremity radiculopathy had progressed to the moderately severe range. The main evidence in support of that conclusion is that the Veteran experienced increased radicular pain with involuntary actions, such as sneezing and coughing. The Board does not find that this statement, in the absence of a specific articulation as to the actual effects of the claimed worsening have on the Veteran's functioning, sufficient to warrant a higher rating for any period on appeal. Moreover, and as noted above, in October 2014 the Veteran reported symptoms of tingling in the legs for 30 years that would go away when moving the legs, but returned when he stopped moving the legs. The Board does not find that intermittent tingling supports a finding of moderately severe left lower extremity radiculopathy. The other medical and lay evidence of record do not support the conclusions of the February 2014 private physician's letter with respect to the severity of the left lower extremity radiculopathy.

The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted.

In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's claims for ratings higher than 20 percent for left lower extremity sciatic nerve radiculopathy and greater than 10 percent for the femoral nerve radiculopathy prior to March 2, 2021, and greater than 20 percent from that date. As the evidence of record persuasively weighs against a higher rating for any of these disabilities during the appeal period, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7.

REASONS FOR REMAND

1. Entitlement to service connection for ischemic heart disease, to include as due to exposure to herbicide agents and/or secondary to service-connected lumbar spine strain and left lower extremity radiculopathy, is remanded.

The Veteran contends that he has ischemic heart disease due to his in-service exposure to herbicide agents. In the alternative, he asserts that he has ischemic heart disease that was caused or aggravated by his service-connected lumbar spine strain and left lower extremity radiculopathy.

The Board regrettably finds that another remand is necessary. Specifically, the prior Board remand directed development for the following: "Also attempt to determine whether the Veteran was exposed to herbicide agents being transported on the U.S.S. Midway." After developing the Veteran's claim of exposure to herbicide agents while onboard the U.S.S. Ranger (from July 1971 to June 1971) and U.S.S. Midway (at various times from April 1970 to June 1971), March 2021 Records Research Responses concluded that the evidence of record did not indicate that either vessel traversed the territorial offshore waters of Vietnam. A May 2021 VA Memorandum concluded that exposure to herbicide agents could not be conceded. The subsequent development, however, specifically considered only whether the U.S.S. Midway was located within the 12 nautical mile territorial sea of the Republic of Vietnam during the Veteran's service aboard. As such, a remand is necessary to consider that contention.

2. Entitlement to TDIU is remanded.

The Veteran also has raised the issue of entitlement to TDIU. Because a decision on the heart disability claim could significantly impact a decision on the TDIU issue, the issues are inextricably intertwined. A remand of the claim for entitlement to TDIU is required.

The matters are REMANDED for the following action:

1. Attempt to determine whether the Veteran was exposed to herbicide agents being transported on the U.S.S. Midway during the Veteran's service onboard. Such actions may include reviewing the deck logs of the U.S.S. Midway in order to ascertain its whereabouts while the Veteran served aboard the ship, conducting a further inquiry with any and all appropriate departments. If any requested records or relevant information is not available, or the search for any such records or information otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records and this information must continue until it is determined that they do not exist or that further attempts to obtain the records or information would
ANDED for the following action:

K. MILLIKAN

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board C. J. Houbeck, Counsel

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.

Analyze in VA Law Explorer