Citation Nr: 1751282 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 12-33 973 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an increased initial disability evaluation for degenerative joint disease of the lumbar spine, currently rated as 10 percent disabling from November 3, 2011 to October 16, 2012; 20 percent disabling from October 16, 2012 to July 23, 2015; and 40 percent disabling from July 23, 2015. REPRESENTATION Appellant represented by: Mary Long, Attorney at Law WITNESSES AT HEARING ON APPEAL The Veteran and his spouse (CONTINUED ON NEXT PAGE) ATTORNEY FOR THE BOARD M. Nye, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1956 to October 1957. This matter comes to the Board of Veterans' Appeals (Board) from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The RO granted service connection for degenerative joint disease of the lumbar spine and assigned an initial disability rating of 10 percent. The Veteran appealed. The assigned rating was increased in subsequent rating decisions, issued in November 2012 and January 2016. These decisions assigned, respectively, a 20 percent rating, effective October 16, 2012, and a 40 percent rating, effective July 23, 2015. Because the Veteran did not express satisfaction with amount of these increases, this claim remains on appeal. See A.B. v. Brown, 6 Vet. App. 35, 38 (1993). In January 2015, the Veteran and his spouse testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The Board remanded the case for further development in March 2015 and again in April 2016. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). (CONTINUED ON NEXT PAGE) FINDINGS OF FACT 1. Prior to October 16, 2012, except during flare-ups, the Veteran's lumbar spine disability was manifested by no more than forward flexion limited to 80 degrees, with painful motion beginning at 70 degrees. 2. Between October 16, 2012 and July 23, 2015, except during flare-ups, the Veteran's lumbar spine disability was manifested by forward flexion greater than 30 degrees but not greater than 60 degrees. 3. The evidence is approximately evenly balanced as to whether, during flare-ups, the Veteran's lumbar spine disability was manifested by no more than 20 degrees forward flexion. 4. The evidence is at least evenly balanced as to whether, between November 3, 2011 and July 23, 2015, the Veteran experienced flare-ups for 72 days. 5. Ankylosis (favorable or unfavorable) of the Veteran's lumbar spine has not been present at any time during the relevant appeal period. CONCLUSIONS OF LAW 1. Prior to October 16, 2012, the criteria for an evaluation in excess of 10 percent for a lumbar spine disability were not met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.1, 4.7, 4.21, 4.25, 4.30, 4.40, 4.45, 4.71a, Diagnostic Codes 5235, 5242 (2017). 2. Even after resolving reasonable doubt in the Veteran's favor, the criteria for a rating higher than 20 percent rating for a lumbar spine disability were not met prior to May 12, 2015. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.7, 4.21, 4.25, 4.30, 4.40, 4.45, 4.71a, Diagnostic Codes 5235, 5242. 3. Resolving reasonable doubt in the Veteran's favor, the criteria for a 40 percent rating for a lumbar spine disability were met between May 12, 2015 and July 23, 2015. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.7, 4.21, 4.25, 4.30, 4.40, 4.45, 4.71a, Diagnostic Codes 5235, 5242. 4. The criteria for an evaluation in excess of 40 percent for a lumbar spine disability have not been met at any time during the appeal period. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.7, 4.21, 4.25, 4.30, 4.40, 4.45, 4.71a, Diagnostic Codes 5235, 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). Duty to Notify The VCAA and implementing regulations impose obligations on VA to provide claimants with notice and assistance. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. The notice VCAA requires depends on the general type of claim the Veteran has made. "As a result, generic notice provided in response to a request for service connection must differ from that provided in response to a request for an increased rating." Vasquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). The Veteran's appeal of the rating assigned for his lumbar spine disability comes to the Board from his appeal of the June 2012 rating decision, which granted the Veteran's initial claim for service-connected compensation for a back disability. VA's General Counsel has determined that, while VA is required to issue a statement of the case when a "downstream element" - such as disagreement with the initial assigned disability rating - arises after the initial adjudication of a claim, 38 U.S.C.A. § 5103(a) does not require the mailing of a separate notice concerning the information and evidence necessary to substantiate the newly raised issue. Id. The RO issued the required statement of the case (SOC) in November 2012. Supplemental Statements of the Case (SSOCs) were issued each time the RO readjudicated the increased rating claim after the various Board remands and subsequent rating decisions increasing the amount of the Veteran's compensation. Duty to Assist VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claim. Service treatment records, post-service treatment records, and lay statements have been associated with the record. The RO arranged for examinations of the Veteran's back in June 2012, October 2012, October 2014 and July 2015. The RO also obtained addendum opinions concerning specific topics relevant to the increased rating claim in March 2014 and, most recently, in August 2016. For the reasons explained below, prior to July 2015, none of the examination reports were adequate to decide the claim. When evaluating the severity of certain disabilities, including disabilities of the spine, which are rated in part based on the degree of limited motion, VA is generally required to consider whether the Veteran's disability resulted in a level of functional loss greater than that already contemplated by the assigned rating. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Relevant factors include weakness, fatigability, lack of coordination, restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. Whenever possible, VA examiners assessing the nature of additional functional loss should describe any additional functional limitations, if possible, in terms of additional degrees of range of motion loss. See Mitchell v. Shinseki, 25 Vet. App. 32, 33 (2011). The June 2012, October 2012 and October 2014 examination reports were inadequate because the respective examiners did not attempt to describe additional functional loss in terms of additional degrees of range of motion loss. The July 2015 report has a different problem. The United States Court of Appeals for Veterans Claims recently decided that adequate range of motion test results include evaluating range of motion "for pain on both active and passive motion and in weight bearing and nonweight-bearing . . . ." Correia v. McDonald, 28 Vet. App. 158, 170 (2016). It is not clear whether the July 2015 examiner tested the range of motion in the Veteran's lumbar spine on both active and passive motion, in weight bearing and nonweight-bearing. Nevertheless, under the circumstances of this case, the failure to do so was harmless error. Based on the findings of the July 2015 VA examiner, the Veteran was assigned a 40 percent rating for his lumbar spine. This is the highest disability rating provided by the relevant rating schedule which does not require ankylosis. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Codes 5237, 5242 (2017). DeLuca does not apply to the analysis for rating disabilities beyond the highest schedular evaluation based on limited motion when a higher evaluation requires ankylosis. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The purpose of testing range of motion in each of the ways described 38 C.F.R. § 4.59 is to apply rating criteria which consider the extent of any limited motion in the relevant joint. Thus, the reasoning of Johnston applies when a Veteran is in receipt of the highest schedular rating based on limited motion and an examination fails to comply with Correia. In this case it is clear from the examination reports and other evidence that the Veteran does not have ankylosis of the lumbar spine, and there is no allegation or suggestion of spinal ankylosis at any time during the relevant appeal period. For these reasons, the July 2015 examination report, together with the other evidence, is adequate to decide the claim. Because of the examiners' failure to comply with DeLuca and Mitchell, the earlier examination reports, by themselves, do not provide sufficient information to apply 38 C.F.R. §§ 4.40 and 4.45. The Board has therefore considered whether the duty to assist requires another remand for further development. A new examination, however, would not be very useful in determining the severity of the Veteran's spine symptoms prior to July 2015. See 38 C.F.R. § 3.159(d) (2017). Moreover, under the circumstances of this case, the Board finds that the most effective remedy for the deficiencies of the pre-July 2015 examination reports is to accelerate the assigned effective date for the Veteran's 40 percent rating based on the Veteran's credible testimony concerning the length and frequency of "flare-ups" - i.e., periods of time in which his lumbar spine symptoms were at their worst. The duty to assist requires the Board to enforce compliance with its prior remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The RO complied with the Board's March 2015 remand orders by arranging the July 2015 examination, which, unlike the earlier reports, included the estimate required by Mitchell. In April 2016 the Board reviewed the case again and noted evidence suggesting that the Veteran had urinary problems which, according to his chiropractor, were neurological abnormalities associated with his lumbar spine disability. Note (1) to the General Rating Formula for Diseases and Injuries of the Spine 38 C.F.R. § 4.71a, DC 5235-5243 requires consideration of neurological findings, including bladder or bowel impairment. Accordingly, the Board remanded the case for a new opinion on bladder impairment as a potential neurological abnormality associated with the lumbar spine. On remand, the RO obtained a new opinion in August 2016, in which the examining physician agreed with the Veteran's chiropractor. After additional examinations to assess the severity of the Veteran's bladder impairment, the RO issued a rating decision in May 2017, granting service connection for bladder impairment and assigning a separate 20 percent rating, effective February 6, 2015 - the date of the letter from the Veteran's chiropractor indicating a relationship between bladder impairment and the lumbar spine. To date, the Veteran has not filed a notice of disagreement with either the disability evaluation or effective date assigned for bladder impairment. Accordingly, these matters are not before the Board. Having taken these steps, the RO has complied with the Board's remand instructions. As the Veteran has not identified additional evidence pertinent to the increased rating issue and as there are no additional records to obtain, no further assistance is required to comply with VA's duty to assist. II. Increased Rating for the Lumbar Spine Rating Principles A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board may consider whether separate ratings may be assigned for separate periods of time - a practice known as "staged ratings," - whether or not the claim concerns an initial rating. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The rating assigned by the RO in this case - 10 percent prior to October 16, 2012, 20 percent between October 16, 2012 and July 23, 2015, and 40 percent since July 23, 2015 - is an example of a staged rating. For the reasons below, the Board will largely leave the assigned staged rating unchanged, but move forward the effective date of the last segment of the staged rating to May 12, 2015. The Veteran's lumbosacral spine disability has been evaluated under Diagnostic Code 5242 and Diagnostic Code 5003 (degenerative arthritis of the spine). Under these codes, disabilities of the spine are rated under either the General Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating. See 38 C.F.R. § 4.71(a). Under the General Rating Formula, a thoracolumbar spine injury is rated as follows: a 10 percent disability rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or 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 disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. The rating criteria further explain, under Note (1), that any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Under 38 C.F.R. § 4.71a, Diagnostic Code 5243, an intervertebral disc syndrome may be rated under either the General Formula or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Under the Formula for Rating Intervertebral Disc Syndrome, incapacitating episodes having a total duration of least 2 weeks but less than 4 weeks during the past 12 months warrant a rating of 20 percent. Incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months warrant a 40 percent rating. Incapacitating episodes having a total duration of at least 6 weeks during the past 12 months warrant a 60 percent rating. Factual Background According to the Veteran, symptoms of his current back disability first began in 1956, when he was lifting heavy objects during active duty service. After receiving his initial application for benefits, the RO arranged for a physician to examine the Veteran's back in June 2012. The examiner diagnosed degenerative joint disease of the lumbar spine. As part of the examination, the physician recorded the results of range of motion tests. Forward flexion ended at 80 degrees, with objective evidence of painful motion beginning at 70 degrees. Extension ended at 25 degrees, with painful motion beginning at the same point. Right and left lateral flexion were 25 degrees. In both directions, objective evidence of painful motion also began at 25 degrees. Right and left lateral rotation were also 25 degrees, with objective evidence of painful motion beginning at the same point. The Veteran was able to perform repetitive use testing. After repetitive use, forward flexion remained at 80 degrees. Extension, left and right lateral flexion, and left and right lateral rotation all ended at 25 degrees after repetitive use. In other words, there was no additional limitation in range of motion after repetitive use testing. According to the examiner, after repetitive use, functional loss consisted of less movement than normal and pain on movement. The examiner also noted tenderness in the lumbar spine. But the Veteran did not have guarding or muscle spasms. The June 2012 examiner conducted muscle strength tests, the results of which were normal. The Veteran did not have muscle atrophy and his reflexes and sensation to light touch were normal. According to the examiner, the Veteran did not have radicular pain. There were no other neurologic abnormalities. The examiner further indicated that the Veteran did not have intervertebral disc syndrome. But he used a cane constantly. Diagnostic tests had been completed, which revealed a minimal Levo convex curvature of the mid lumbar spine with mild osteoarthritis. According to the examination report, the examiner asked the Veteran about flare-ups. The Veteran told the examiner that, during flare-ups, he was unable to function due to severe back pain. The examiner wrote that the impact of the lumbar spine disability on the Veteran's ability to work was that the Veteran experienced low back pain with overuse. According to the examiner, it was at least as likely as not that lumbar degenerative joint disease was incurred in service. Based on that opinion, the RO granted service connection and assigned an initial 10 percent rating. After the Veteran appealed the 10 percent rating, the RO arranged a new examination, which took place in October 2012. The diagnosis remained the same. On examination, forward flexion ended at 35 degrees, with objective evidence of painful motion beginning at 35 degrees. Extension was 5 degrees, with painful motion beginning at the same point. Left and right lateral flexion both ended at 10 degrees, which was also the point where painful motion began. Likewise, left and right lateral rotation were both 10 degrees, with painful motion beginning at the same point. The Veteran was able to perform repetitive use testing. There was no additional limitation in his range of motion after repetitive use. According to the examiner, functional loss consisted of weakened movement, excess fatigability, incoordination, pain on movement, disturbance of locomotion and interference with sitting, standing and/or weight-bearing. The examiner noted lumbar muscle tenderness. Unlike the previous examiner, he also noted muscle spasm severe enough to result in abnormal gait. Muscle strength and reflex test results remained normal and there was no radicular pain or other neurologic abnormality. According to the examiner, the Veteran did not have intervertebral disc syndrome. The examiner noted the use of assistive devices - specifically, regular use of a back brace and constant use of a cane. In the examiner's opinion, the back disability affected the Veteran's ability to work by limiting the Veteran's ability to walk and stand. The Veteran's posture was within normal limits, but he walked with a limp due to back pain. The RO obtained the next medical opinion to obtain additional information to comply with 38 C.F.R. § 4.40, DeLuca, 8 Vet. App. at 206, and Mitchell, 25 Vet. App. at 43. In Mitchell, the Court indicated that, whenever possible, VA examiners assessing the nature of additional functional loss should describe any additional functional limitations, if possible, in terms of additional degrees of range of motion loss. See Mitchell, 25 Vet. App. at 44. Because the June 2012 and October 2012 examiners did not attempt to describe additional functional limitations in terms of additional degrees of range of motion loss, the RO requested an opinion on this issue. In a report dated March 2014, a VA physician indicated that, despite her review of the medical records, she could not provide the requested opinion without speculating. According to the examiner, "The rationale for this conclusion is that the Veteran does not provide sufficient description regarding additional functional loss during flare-ups or repetitive use." After receiving this report, the RO arranged a third spine examination, which took place in October 2014. The October 2014 examiner made three diagnoses: (1) osteoarthritis; (2) healed vertebral body compression fractures; and (3) levoscoliosis. The Veteran told the examiner that he experienced flare-ups - specifically pain when coughing or sneezing. According to the October 2014 test results, lumbar spine range of motion was slightly less limited that it had been in October 2012. Forward flexion ended at 40 degrees, with objective evidence of painful motion beginning at 40 degrees. Extension ended at 15, with painful motion beginning at the same point. Left and right lateral flexion were 20 degrees, with no objective evidence of painful motion. Left and right lateral rotation were 30 degrees, also with no objective evidence of painful motion. The Veteran was able to complete repetitive-use testing. There was no additional limitation in range of motion after repetitive use. According to the examiner, the Veteran did not have localized tenderness or pain to palpation of the joints or soft tissues of the lumbar spine. He also had no guarding or muscle spasms. Muscle strength and reflex test results were normal and there was no muscle atrophy. The Veteran had no radicular pain and there were no other neurologic abnormalities. According to the examiner, the Veteran did not have intervertebral disc syndrome. He continued to use a back brace and a cane. The examiner identified vertebral fractures and leno convex curvature after reviewing an imaging study of the spine. The vertebral compression deformities involved 30 percent loss of body height at each level. Section 20 of the report ("Remarks") indicates that the Veteran was limping and using a cane due to back pain. The examiner described the Veteran's posture as hyper kyphotic. The October 2014 examiner indicated that the Veteran did experience additional functional limitation during flare-ups or after repeated use over time. Like the author of the March 2014 opinion, the examiner wrote that he was not able to describe the extent of that limitation in terms of additional degrees of range of motion loss. The examiner suggested that the reason he was unable to make the requested estimate is because he had not tested the Veteran's range of motion at the time of a flare up. Partly because the prior examination reports failed to comply with Mitchell, the Board remanded this appeal a new examination, which took place in July 2015. The diagnoses were lumbar spine osteoarthritis and vertebral fracture. The Veteran told the examiner that, during flare-ups, he was unable to go shopping, do housework or accomplish personal grooming. The July 2015 examiner conducted range of motion tests. The results indicate forward flexion ending at 40 degrees, with objective evidence of painful motion beginning at 40 degrees. Extension was 10 degrees, with painful motion beginning at the same point. Right and left lateral flexion were 15 degrees, with painful motion beginning at 15 degrees. Right and left lateral rotation were also 15 degrees, with painful motion beginning at the same point. There were no additional limits to range of motion after repetitive use. According to the July 2015 examiner, the Veteran did not have guarding or muscle spasms. As in the case of previous examinations, muscle strength and reflex test results were normal and the examiner indicated that there was no radiculopathy or other neurologic abnormalities. According to the examiner, the Veteran did not have intervertebral disc syndrome. He continued to use a back brace and a cane. The examiner reviewed imaging studies. Like the October 2014 report, the July 2015 report notes vertebral fractures with thirty percent height loss. Functional impact consisted of limited spine mobility, constant pain and inability to walk without a cane. The examiner indicated that the Veteran could walk for one or two blocks, but very slowly. Unlike earlier examiners, the July 2015 examiner gave a more detailed description of flare-ups and described limited motion due to pain during flare-ups in terms of degrees of limited motion. Based on his interview with the Veteran, the examiner estimated that, during flare-ups, forward flexion would be reduced to approximately 20 degrees and the left lateral flexion would be 0 degrees. The examiner indicated flare-ups three times per year and that, on each occasion, flare-ups lasted between 4 and 10 days. Subsequent examinations concerned bladder impairment as an associated neurological abnormality associated with the Veteran's lumbar spine disability. As the Board has explained, as a result of this additional evidence, the Veteran was assigned a separate 20 percent rating. Because note (2) to the General Rating Formula indicates that associated neurologic abnormalities should be evaluated separately under an appropriate diagnostic code, and the Veteran has not appealed the 20 percent rating assigned for bladder impairment, there is no need to describe this evidence in detail. In addition to the examination reports, the Board has reviewed post-service medical treatment records and the Veteran's written statements and hearing testimony. The medical evidence mostly concerns information which has already been described in the Board's summary of the many examination reports. These records are consistent with the Veteran's statements that he has regularly seen a chiropractor for assistance and that he experiences periodic flare-ups in which movement is difficult. During the January 2015 hearing, the Veteran described his back symptoms during flare-ups. During flare-ups, he said that he feels so much pain he can barely walk. He explained that his flare-ups occur when he leans to his left. He testified that, "I probably have a flare up about 4 times a year." According to the Veteran, flare-ups usually last approximately three or four days. But on one occasion, a flare-up lasted 10 days. According to the Veteran, he was not experiencing a flare-up at the time of his earlier VA-authorized examinations. He testified that no one had ever prescribed bed rest to treat his back disability. The Veteran denied radiating pain down his legs. He also denied bladder control problems. Analysis The most straightforward question in this appeal concerns the Veteran's request for a rating in excess of 40 percent, which has been assigned to his back disability since July 23, 2015. According to the General Rating Formula, higher evaluations of 50 and 100 percent are authorized only if the Veteran's symptoms include unfavorable ankylosis of, respectively, the thoracolumbar spine and the entire spine. 38 C.F.R. § 4.71a. In note (5) to the General Rating Formula, unfavorable ankylosis is defined as "a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurological symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis." Id. The available range of motion test results have varied in severity throughout the appeal period. For example, the Veteran was capable of 80 degrees of forward flexion in June 2012 and 40 degrees of forward flexion in July 2015. But there is no evidence that the Veteran's thoracolumbar spine has ever been fixed in flexion or extension at any time during the appeal period. Even during flare-ups, the July 2015 examiner estimated that the Veteran would remain capable of 20 degrees of forward flexion. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes authorizes a 60 percent rating when incapacitating episodes have a total duration of at least 6 weeks during the previous 12 months. But all of the available examination reports indicate that the Veteran does not have intervertebral disc syndrome. An incapacitating episode, moreover, is defined as "a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1) (2017). At the hearing, the Veteran testified that his health care providers had not prescribed bed rest. For these reasons, the preponderance of the evidence weighs against the conclusion that the Veteran is entitled to an evaluation higher than 40 percent at any time during the appeal period. This finding focuses the Board's analysis on two remaining questions: (1) Whether the Veteran is entitled to a rating higher than 10 percent prior to October 16, 2012; and (2) Whether the Veteran is entitled to a rating higher than 20 percent between October 16, 2012 and July 23, 2015. Comparing the examination reports from June 2012 and October 2012 suggests that the Veteran's lumbar spine symptoms worsened significantly at some point between these dates. Forward flexion was 80 ended at degrees in June and the examiner indicated that the Veteran was capable of 70 degrees of forward flexion before the appearance of objective evidence of painful motion. By October, forward flexion ended at 35 degrees, with painful motion beginning at that point. Similarly, extension was reduced from 25 degrees to 5 degrees. Right and left lateral flexion were reduced from 25 degrees to 10 degrees. Subsequent examination reports varied to some degree, but all of them include range of motion test results much closer to the October 2012 report than the June 2012 report. Prior to October 2012, the only available range of motion test results met the criteria for a 10 percent rating - i.e., forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees. After October 2012, all of the range of motion test results meet the criteria for the currently assigned 20 percent rating - i.e., forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. 38 C.F.R. § 4.71a, General Rating Formula. In the absence of flare-ups, for the period prior to July 23, 2015, the evidence would support the staged rating assigned by the RO (10 percent prior to October 16, 2012 and 20 percent between October 16, 2012 and July 23, 2015). But the July 2015 examiner estimated that, during flare-ups, forward flexion would be reduced to 20 degrees, a measurement which meets the criteria for a 40 percent rating - i.e., forward flexion of the thoracolumbar spine 30 degrees or less. Id. Moreover, the Veteran complained of flare-ups to earlier VA examiners and he did so in language indicating that flare-ups prior to July 2015 were serious. For example, he told the June 2012 examiner that, during flare-ups, he was "unable to function due to severe back pain." The Board will therefore considered whether to award a 40 percent rating prior to July 23, 2015 based on the examiner's estimate of the degree of limited motion during flare-ups pursuant to Mitchell. During his January 2015 hearing, the Veteran testified that, prior to that time, he experienced flare-ups four times per year and each flare-up lasted 3 to 4 days, except one, which lasted 10 days. According to the July 2015 examination, report, the Veteran told the examiner that he experienced flare-ups three times each year and that, on each occasion, his symptoms improved after four to ten days. Even if the Veteran's range of motion during flare-ups meets the criteria for a higher 40 percent rating, the assignment of such a rating for the entire period between October 16, 2012 and July 23, 2015 would be inconsistent with 38 C.F.R. § 4.7, which indicates that, when there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. Even in the worst year described by the Veteran - in which he experienced one flare-up lasting 10 days and three flare-ups lasting 4 days - he more closely approximated the criteria for a 40 percent rating for, at most, 22 days out of the year. Thus, the evidence suggests that the Veteran's disability picture more nearly approximated the criteria for the lower 20 percent rating. Nevertheless, the Board has considered the possibility that the staged rating assigned by the RO fails to reflect the severity of the Veteran's lumbar spine symptoms during a clearly ascertainable period of time. It is also potentially significant that, prior to July 23, 2015, detailed information about the Veteran's limited range of motion during flare-ups was unavailable due to the failure of VA examiners to comply with DeLuca and Mitchell. To eliminate the possibility that the Veteran will be undercompensated due to VA's prior failure to comply with its duty to assist, the Board will consider modifying the effective dates of the staged rating in order to reflect the known duration of flare-ups during the appeal period. The relevant appeal period begins on November 3, 2011, the date the RO received the Veteran's initial claim for service-connected disability compensation for his back. Between that date and July 23, 2015 there were 1,358 days - or 3 years, 8 months and 20 days. As the Board has noted, as of January 30, 2015, according to his hearing testimony, the Veteran had experienced three or four flare-ups each year lasting 3 or 4 days each, and one flare-up lasting 10 days. Assuming that, in each year, he experienced four (rather than three) flare-ups and that each of the usual flare-ups lasted 4 days (rather than three), this means that he experienced flare-ups for 58 days between November 3, 2011 and January 30, 2015. According to the July 2015 report, the Veteran indicated that he was experiencing flare-ups approximately three times each year and that it took him 4 to 10 days to improve. There were 174 days between the videoconference hearing and the July 2015 examination. To extend to the Veteran the full benefit of any reasonable doubt, see 38 C.F.R. § 4.3, the Board will assume that, during that interval, the Veteran was experiencing 10-day flare-ups at a rate of three times per year. Based on this assumption, the Board will find that the Veteran experienced flare-ups for fourteen additional days between his hearing and the current effective date for his 40 percent rating in July 23, 2015. Adding these 14 days to the 58 pre-hearing days of flare-ups results in 72 days in which the Veteran was experiencing flare-ups. Accordingly, the Board finds that the Veteran's lumbar spine disability met the criteria for a 40 percent disability rating - i.e., forward flexion less than 30 degrees - for, at most, 72 days prior to July 23, 2015. For this reason, the staged rating assigned by the RO potentially understates the severity of the Veteran's disability for those 72 days. Pursuant to 38 C.F.R. § 4.3, the Board will move forward by 72 days the current effective date of the Veteran's 40 percent disability rating. In other words, the Veteran will be assigned a 40 percent rating for the lumbar spine effective July 23, 2015. For the reasons above, in all other respects, the rating on appeal is consistent with the evidence and the applicable laws and regulations. ORDER Entitlement to an initial disability evaluation for degenerative joint disease of the lumbar spine in excess of 10 percent between November 3, 2011 and October 16, 2012 is denied. Entitlement to an initial disability evaluation for degenerative joint disease of the lumbar spine in excess of 20 percent between October 16, 2012 and May 12, 2015 is denied. Entitlement to an increased initial rating of 40 percent, but no higher, for degenerative joint disease of the lumbar spine is granted for the period between May 12, 2015 and July 23, 2015. Entitlement to an initial evaluation in excess of 40 percent for degenerative joint disease of the lumbar spine is denied for the entire appeal period. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs