Citation Nr: 1802681	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO. 10-36 490A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUES

1. Entitlement to a rating in excess of 10 percent prior to July 21, 2010, for degenerative disc disease (DDD) of the lumbar spine.

2. Entitlement to a rating in excess of 20 percent from July 21, 2010, to April 23, 2017, for DDD of the lumbar spine.

3. Entitlement to a rating in excess of 40 percent from April 24, 2017, for DDD of the lumbar spine.


REPRESENTATION

Appellant represented by:	Arizona Department of Veterans Services


WITNESSES AT HEARING ON APPEAL

The Veteran, the Veteran's Spouse
ATTORNEY FOR THE BOARD

M. Neal, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 1964 to May 1968, and from June 1976 to July 1977.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Phoenix, Arizona, Regional Office (RO) of the Department of Veterans Affairs (VA).

In December 2015, the Board remanded the matter in order to afford the Veteran a hearing before a Veterans Law Judge (VLJ). Subsequently, in March 2016, the Veteran and his spouse testified at a Travel Board hearing. However, the VLJ who conducted that hearing and signed the February 2015 remand is no longer available to participate in the Veteran's appeal. In an October 2017 letter, the Veteran was notified of his right to a hearing before a VLJ who would decide the claim. The record reflects that no response was received from the Veteran. As such, the Board finds that the Veteran has waived his right to an additional hearing and will proceed with adjudication. See Stegall v. West, 11 Vet. App. 268, 271 (1998).


FINDINGS OF FACT

1. Prior to July 14, 2009, the Veteran's DDD of the lumbar spine was manifested by flexion limited to no worse than 70 degrees; no muscle spasm or guarding severe enouth to result in abnormal gait or spinal contour was shown.

2. From July 14, 2009, to July 20, 2010, the Veteran's DDD of the lumbar spine was manifested by limited flexion and extension and muscle spasm severe enough to result in abnormal gait.

3. From July 21, 2010, to December 14, 2014, the Veteran's DDD of the lumbar spine was manifested by flexion limited to at least 10 degrees; extension limited to at least 10 degrees; right lateral flexion limited to at least 20 degrees; left lateral flexion limited to at least 20 degrees; right lateral rotation limited to at least 16 degrees; left lateral rotation limited to at least 16 degrees; muscle spasm, localized tenderness, or guarding severe enough to result in abnormal gait; and incapacitating episodes due to intervertebral disc syndrome (IVDS) having a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months.

4. From December 15, 2014, to April 23, 2017, the Veteran's DDD of the lumbar spine was manifested by flexion limited to 50 degrees; extension limited to 10 degrees; right lateral flexion limited to 10 degrees; left lateral flexion limited to 10 degrees; right lateral rotation limited to 20 degrees; and left lateral rotation limited to 20 degrees; IVDS; and 3 flare-ups every 12 months, each lasting up to 3 days.

5. From April 24, 2017, the Veteran's DDD of the lumbar spine was manifested by flexion limited to 30 degrees; extension limited to 5 degrees; right lateral flexion limited to 10 degrees; left lateral flexion limited to 10 degrees; right lateral rotation limited to 15 degrees; and left lateral rotation limited to 15 degrees; IVDS; and flare-ups occurring multiple times per week, each lasting up to a day.


CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 10 percent for DDD of the lumbar spine prior to July 14, 2009, were not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242, 5243 (2017).

2. The criteria for a rating of 20 percent for DDD of the lumbar spine from July 14, 2009, to July 20, 2010, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242, 5243 (2017).

3. The criteria for a rating of 40 percent for DDD of the lumbar spine from July 21, 2010, to December 14, 2014, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242, 5243 (2017).

4. The criteria of a rating in excess of 20 percent for DDD of the lumbar spine from December 15, 2014, to April 23, 2017, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242, 5243 (2017).

5. Resolving all reasonable doubt in the Veteran's favor, the criteria for a rating of 60 percent for DDD of the lumbar spine from April 24, 2017, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242, 5243 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify & Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012) defined VA's duty to notify and assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).

In a claim for increase, the VCAA requires notice of types of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).

In August 2007, the RO mailed the Veteran a VCAA letter detailing the evidentiary requirements of increased rating and TDIU claims, the efforts that the Veteran could take to develop his claim, and VA's responsibilities to assist the Veteran. The Veteran has neither alleged, nor demonstrated, any prejudice with regard to the content or timing of VA's notice or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination).

Pursuant to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C. § 5103A (c)(2). All records pertaining to the conditions at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 
38 C.F.R. § 3.159 (c)(3) ). 

With regard to the duty to assist, the Veteran's pertinent post-service treatment records have been secured, including records from the Social Security Administration (SSA). In addition, the Veteran was afforded a VA examination on April 24, 2017. For reasons further discussed below, the Board finds that the examination is adequate. The examination was performed by a qualified medical professional and was predicated on a full reading of all available records. The examiner also provided a detailed rationale for the opinion rendered. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Neither the Veteran nor the representative has challenged the adequacy of the April 24, 2017, VA examination. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his or her opinion). 

In addition, the record includes previous VA examinations that did not test for pain on passive motion, weight-bearing, and nonweight-bearing. As stated in Correia v. McDonald, No. 13-3238, 2016 WL 3591858 (Vet. App. July 5, 2016), 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 nonweight-bearing and, if possible, with range of motion (ROM) measurements of the opposite undamaged joint. The Board notes that retroactive examinations cannot be performed because it would be a matter of mere speculation for the examiner. Accordingly, the Board finds that VA's duty to assist, including with respect to obtaining a VA examination, has been met. 38 C.F.R. § 3.159(c)(4) (2017).

Legal Criteria & Analysis

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 
38 U.S.C. § 1155. 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 active military service and their residual conditions in civil occupations. 
38 U.S.C. § 1155; 38 C.F.R. § 4.1. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21.

Where there is a question as to which of two evaluations shall be applied, the higher rating 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 (2017). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b) (2012); 38 C.F.R. §§ 3.102, 4.3 (2017).

In both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to the appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim.

In a February 2009 rating decision, the RO assigned a disability rating of 10 percent, effective July 26, 2007, for the Veteran's DDD of the lumbar spine. Subsequently, in a September 2010 rating decision, the RO assigned a disability rating of 20 percent, effective July 21, 2010. Most recently, in June 2017, the RO assigned a 40 percent disability rating with an effective date of April 24, 2017. The Veteran contends that his DDD of the lumbar spine is more severe than currently evaluated for the entire period of appeal.

Disabilities of the spine are currently rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating IVDS Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.

The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, the 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 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 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. Finally, a 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. 

Note (2) provides that, 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 normal combined range of motion of the thoracolumbar spine is 240 degrees. See also Plate V, 38 C.F.R. § 4.71a.

When rating degenerative arthritis of the spine (Diagnostic Code 5242), in addition to consideration of rating under the General Rating Formula for Diseases and Injuries of the Spine, rating for degenerative arthritis under Diagnostic Code 5003 should also be considered. 38 C.F.R. § 4.71a.

Diagnostic Code 5243 provides that intervertebral disc syndrome (IVDS) is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. 

The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides a 20 percent disability rating 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 disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating 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.

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. Note (2) provides that, if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be rated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a.

More generally, disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40.

With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 
38 C.F.R. § 4.45.

In addition, the intent of the Rating Schedule is 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. This regulation also provides that the intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, and that crepitation should be noted carefully as points of contact which are diseased.

Thus, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). 

A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). And although VA is required to apply 
38 C.F.R. §§ 4.40 and 4.45, pertaining to functional impairment for disabilities evaluated on the basis of limitation of motion, where the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis, these regulations are not for application. Johnston, 10 Vet. App. at 84-85. Moreover, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id.; see 
38 C.F.R. § 4.40.

According to VA treatment records, the Veteran presented to the anesthesiology clinic for treatment of low back pain in June 2007. See June 2007 VA anesthesiology consultation note. The treating medical provider noted that the range of motion (ROM) of the Veteran's back exhibited maximum flexion with increased low back pain and extension, rotation, and side-bending within normal limits. In addition, the provider noted some pain to palpation on paraspinous lumbar muscles.

In September 2007, the Veteran underwent a VA examination evaluating the severity of his DDD of the lumbar spine. See September 2007 Compensation and Pension Examination Note. He reported daily low back pain and stiffness as well as monthly flare-ups lasting 3 to 7 days. Id. An ROM test revealed flexion limited to 70 degrees, extension limited to 30 degrees, right and left lateral flexion limited to 30 degrees, right and left lateral rotation limited to 30 degrees, and pain with movement. The examiner noted no additional limitation of motion with repetitive-use testing. In addition, the examiner noted paraspinal tenderness over the left lumbar paraspinous musculature. The examiner also cited a June 2007 x-ray, which revealed extensive degenerative arthritis.

On July 14, 2009, the Veteran presented to the pain clinic after falling down the stairs and landing on his right back. See July 14, 2009, VA pain clinic follow up note. The treating medical provider indicated that his gait was characterized by a guarded walk. The provider also noted a reduced ROM of the lumbar spine in all ranges. Subsequently, the Veteran returned to the pain clinic after an episode of severe low back pain, which kept him bedbound for 4 days. See November 2009 VA pain clinic follow up note. The provider noted a reduced ROM of the lumbar spine in all ranges. The Veteran again visited the pain clinic in February 2010 after twisting his back and experiencing muscle spasms. See February 2010 VA pain clinic follow up note. A physical examination revealed a stiff antalgic gait. See also April 2010 VA physical therapy consultation note (reporting guarding and an antalgic gait).

During a hearing before a Decision Review Officer (DRO), the Veteran reported that his back pain varies from spasms to pain "landing me in bed for days at a time[.]" See November 2009 DRO hearing transcript. He also reported flare-ups occurring up to twice a week that last up to 36 hours. Id.

A further VA examination took place on July 21, 2010. See July 21, 2010 Compensation and Pension Examination Note. The examiner noted a normal gait and no paraspinal guarding or spasm. An ROM test revealed flexion limited to 50 degrees, extension limited to 10 degrees, right lateral flexion limited to 25 degrees, left lateral flexion limited to 30 degrees, right and left lateral rotation limited to 45 degrees, and pain with movement.

In his September 2010 VA Form 9, the Veteran indicated that the July 21, 2010, VA examination omitted his reports flare-ups of lower back pain. See September 2010 VA Form 9.

The Veteran returned for another VA examination on October 8, 2010. See October 8, 2010, Compensation and Pension Examination Note. He reported flare-ups of low back pain every 2 to 3 weeks lasting 3 to 7 days. Id. According to the Veteran, the flare-ups prevent him from getting up to go to the bathroom or "[doing] anything around the house." Id. The Veteran indicated that his primary care physician instructed him to increase his frequency of medication and seek bedrest during severe flare-ups rather than go to the emergency department. Id. An ROM test revealed flexion limited to 10 degrees, extension limited to 10 degrees, right and left lateral flexion limited to 20 degrees, right and left lateral rotation limited to 16 degrees, and pain with movement. The test was performed during a flare-up. Further, the examiner noted muscle spasms, localized tenderness or guarding severe enough to cause an abnormal gait. In the report, the examiner noted 3 incapacitating episodes due to IVDS in the last 12 months lasting approximately 5 days each.

In January 2013, the Veteran presented to the pain clinic with complaints of back pain. See January 2013 VA pain clinic procedure note. Subsequently, the Veteran presented to the emergency department for treatment and received medication to control his back pain. See March 2013 VA emergency department patient assessment note; see also May 2012 VA emergency department patient assessment note; February 2014 VA emergency department patient assessment note.

On December 15, 2014, the Veteran submitted to an additional VA examination. See December 15, 2014, Compensation and Pension Examination Note. An ROM test revealed flexion limited to 50 degrees, extension limited to 10 degrees, right and left lateral flexion limited to 10 degrees, right and left lateral rotation limited to 20 degrees, and pain with movement. In addition, the test revealed pain with weight-bearing. Further, the examiner noted muscle spasms resulting in an abnormal gait. The Veteran reported experiencing 3 flare-ups every 12 months lasting 24 to 72 hours each. Id. However, the examination was not conducted during a flare-up. The examiner stated that she could not say without resorting to mere speculation whether pain, weakness, fatigability, or incoordination significantly limits functional ability with flare-ups. Simultaneously, the examiner stated that flare-ups would limit the Veteran's ability to stoop, stand or walk for prolonged periods of time, and lift over 10 pounds. The examiner found no incapacitating episodes attributed to IVDS requiring bed rest prescribed by a physician and treatment by a physician in the past 12 months.

The Veteran and his spouse testified at a travel board hearing in March 2016. See March 2016 travel board hearing transcript. The Veteran indicated that he regularly visits the emergency department for injections due to excruciating back pain. Id. 

In an October 2016 message to his physician, the Veteran stated that he experiences flare-ups "more daily than monthly." See October 2016 correspondence titled "General Inquiry." He also stated that he has so many flare-ups that he is unsure whether they are separate flare-ups or part of a continuous flare-up. See also September 2016 correspondence (reporting flare-ups confining the Veteran to bed for 2 to 3 days, "sometimes more and others less.").

A VA examination regarding the Veteran's DDD of the lumbar spine took place on April 24, 2017. See April 24, 2017, Compensation and Pension Examination Note. During the examination, the Veteran reported that he was experiencing a flare-up. He also reported that his flare-ups occur a couple times a week and last as long as a day. Id. An ROM test revealed flexion limited to 30 degrees, extension limited to 5 degrees, right and left lateral flexion limited to 10 degrees, right and left lateral rotation limited to 15 degrees, and pain with movement. In addition, the test also revealed pain with weight-bearing and nonweight-bearing. The examiner noted that a passive motion ROM test "could not be performed or is not medically appropriate." Id. The examiner also noted muscle spasms resulting in abnormal gait or abnormal spinal contour. Further, the examiner stated that she could not say without resorting to mere speculation whether pain, weakness, fatigability, or incoordination significantly limits functional ability with flare-ups. However, she also stated that flare-ups would likely result in increased back pain with prolonged sitting and walking, bending, twisting, crawling, and heavy lifting. The examiner also found no incapacitating episodes attributed to IVDS requiring bed rest prescribed by a physician and treatment by a physician in the past 12 months.

More recently, in August 2017, the Veteran wrote to his physician that he was on his "second day of being incapaticated by the chronic pain and can only consider the option of going to the [emergency department] for some pain relief." See August 2017 correspondence titled "General Inquiry." The Veteran also scheduled a visit with a physician for a spinal cord stimulator evaluation to manage his pain. See September 21, 2017, VA pain outpatient clinic psychology note.

Upon review of the record, the Board finds, first, that a disability rating in excess of 10 percent for the Veteran's DDD of the lumbar spine is not warranted prior to July 14, 2009. To obtain a higher rating for the Veteran's spine disability, it is necessary to show forward flexion of no worse 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. Here, however, the Veteran's forward flexion was shown to be no worse than 70 degrees, even when pain on motion is considered, and no abnormal gait, scoliosis, reversed lordosis, or abnormal kyphosis was shown. Further, there is no evidence that the Veteran experienced incapacitating episodes of at least 2 weeks' duration during the 12-month period prior to July 14, 2009. Thus, the Board finds that a higher rating is not warranted for the Veteran's spine disability prior to July 14, 2009.

Second, the Board finds that the competent and credible evidence of record establishes that a 20 percent disability rating most nearly approximates the severity of the Veteran's DDD of the lumbar spine from July 14, 2009, to July 20, 2010. According to the July 14, 2009 VA pain clinic follow up note, the Veteran's gait exhibited a guarded walk. In a February 2010 pain clinic follow up, the Veteran reported muscle spasms in his back. The medical provider noted guarding and an antalgic gait. Muscle spasms or guarding severe enough to result in an abnormal gait warrants a 20 percent disability rating. Accordingly, the criteria for a rating of 20 percent for DDD of the lumbar spine from July 14, 2009, to July 20, 2010, have been met. See 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243 (2017).

The Board next finds that the preponderance of the competent and credible evidence of record establishes that a 40 percent disability rating most nearly approximates the severity of the Veteran's DDD of the lumbar spine from July 21, 2010, to December 14, 2014. The July 21, 2010, VA examination revealed a flexion greater than 30 degrees. However, the Veteran indicated that the examiner did not note his reports of flare-ups of lower back pain. See September 2010 VA Form 9. Indeed, the Veteran's testimony at the November 2009 DRO hearing and treatment records prior to the July 21, 2010, VA examination reflect consistent reports of flare-ups characterized by muscle spasms and episodes of severe pain. See February 2010 pain clinic follow up; November 2009 DRO hearing transcript; November 2009 pain clinic follow up note. There is no evidence to doubt the credibility of the Veteran or that of his treatment providers.

In contrast, the examiner of the October 8, 2010, VA examination performed a ROM test during a flare-up. The test revealed a flexion limited to 10 degrees. The Board finds that the October 8, 2010, examination is more probative than the July 21, 2010, examination as it was performed during a flare-up and is more consistent with the medical record. Therefore, the criteria for a rating of 40 percent for DDD of the lumbar spine from July 21, 2010, to December 14, 2014, have been met. In so finding, the Board notes that there is no evidence of record of ankylosis of the thoracolumbar spine between July 21, 2010, and December 14, 2014. As such, a rating in excess of 40 percent for DDD of the lumbar spine from July 21, 2010, to December 14, 2014, is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243.

Simultaneously, however, the Board finds that that the competent and credible evidence of record establishes that the criteria of a rating in excess of 20 percent from December 15, 2014, to April 23, 2017, have not been met. The December 15, 2014, VA examination revealed a flexion greater than 30 degrees. While the Veteran reported experiencing 3 flare-ups every 12 months lasting 24 to 72 hours each, the examiner did not note any incapacitating episodes attributed to IVDS. Even if the flare-ups were recognized as qualifying episodes of IVDS, they had a total duration of less than 2 weeks and, therefore, would only warrant a disability of 10 percent from December 15, 2014, to April 23, 2017. Moreover, there is no evidence of ankylosis of the thoracolumbar spine during this portion of the period of appeal. Accordingly, a rating in excess of 20 percent for DDD of the lumbar spine from December 15, 2014, to April 23, 2017, is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243.

Finally, the Board finds that the evidence is in relative equipoise as to whether the legal criteria of a 60 percent disability rating for DDD of the lumber spine from April 24, 2017, has been met. The April 24, 2017, VA examination revealed a flexion of 30 degrees and no ankylosis. In addition, the examiner found no incapacitating episodes attributed to IVDS requiring bed rest prescribed by a physician and treatment by a physician in the past 12 months. There is no evidence to doubt the examiner's credibility. At first glance, it appears that the Veteran's DDD of the lumbar spine does not meet the criteria of a rating in excess of 40 percent from April 24, 2017. However, placing the Veteran's flare-ups in context of the entire medical record brings to light evidence in support of a 60 percent rating. See 38 C.F.R. § 4.2.

In the April 24, 2017, VA examination, the Veteran reported experiencing flare-ups multiple times a week lasting as long as a day. Indeed, the record is replete with reports of flare-ups rendering the Veteran bedridden or immobile for days at a time. See August 2017 correspondence titled "General Inquiry"; October 2016 correspondence titled "General Inquiry"; September 2016 correspondence; July 2016 correspondence; December 15, 2014, Compensation and Pension Examination Note; October 8, 2010, Compensation and Pension Examination Note; November 2009 VA pain clinic follow up note; November 2009 DRO hearing transcript. The Board notes that for a flare-up to constitute an "incapacitating episode" within the meaning of the rating formula for IVDS, it must require bedrest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, note 1. The April 24, 2017, VA examination did not characterize the Veteran's flare-ups as such. However, the October 8, 2010, VA examination did find the Veteran's flare-ups to be incapacitating episodes attributed to IVDS. Moreover, the Veteran reported that his primary care physician instructed him to seek bedrest during his flare-ups. In addition, the record reflects that the Veteran scheduled a visit with his physician for a spinal cord stimulator evaluation to manage his pain. See September 21, 2017, VA pain outpatient clinic psychology note. Accordingly, the record entails competent and credible evidence that the flare-ups reported in the April 24, 2017, VA examination constitute incapacitating episodes due to IVDS. 

Turning to the total duration of the incapacitating episodes, the Board acknowledges the reports of daily flare-ups lasting days at a time throughout the 12 month period prior to the April 24, 2017, VA examination. See October 2016 correspondence titled "General Inquiry"; September 2016 correspondence. However, it is unclear from the record whether the episodes occurred consistently on a daily basis during that period. It is also unclear how consistent were the durations of the episodes. As such, it is difficult to determine exactly from the record the total period of the Veteran's incapacitating episodes. Nonetheless, the Board finds that there is enough documentation to find the evidence is approximately balanced as to whether the Veteran's incapacitating episodes due to IVDS had a total duration of at least 6 weeks during the 12 months prior to the April 24, 2017, VA examination. Accordingly, the Board resolves all reasonable doubt in the Veteran's favor and determines that the criteria for a rating of 60 percent for DDD of the lumbar spine from April 24, 2017, have been met. See 38 C.F.R. § 4.2, 4.3, 4.71a, Diagnostic Code 5243. 

In so finding, the Board notes that there is no evidence of ankylosis of the thoracolumbar spine from April 24, 2017. Therefore, a rating in excess of 60 percent for DDD of the lumbar spine for that portion of the period of appeal is unwarranted. The Board also acknowledges that the examiner of the April 24, 2017, did not explain why a passive ROM test could not be performed or why it was not medically appropriate. However, even if a passive ROM test was performed, the absence of ankylosis precludes entitlement to a schedular rating in excess of 60 percent for DDD of the lumbar spine. See 38 C.F.R. § 4.71a, Diagnostic Code 5242.

Lastly, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, because the preponderance of the evidence is against the Veteran's claims for increase above what is granted herein, that doctrine is not helpful to the Veteran. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 



ORDER

A rating in excess of 10 percent for DDD of the lumbar spine prior to July 14, 2009, is denied.

A rating of 20 percent for DDD of the lumbar spine from July 14, 2009, to July 20, 2010, is granted.

A rating of 40 percent for DDD of the lumbar spine from July 21, 2010, to December 14, 2014, is granted.

A rating in excess of 20 percent for DDD of the lumbar spine from December 15, 2014, to April 23, 2017, is denied.

A rating of 60 percent for DDD of the lumbar spine from April 24, 2017, is granted.



____________________________________________
CAROLINE B. FLEMING
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs