Citation Nr: 18140117 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 16-21 218 DATE: October 2, 2018 ORDER Effective August 10, 2017, a disability rating of 40 percent for service-connected lumbar spine disability is granted.   FINDING OF FACT Since August 10, 2017, the Veteran’s service-connected lumbar spine disability has been productive of pain causing significant loss of range of motion and functional loss equivalent to flexion limited to 30 degrees or less. CONCLUSION OF LAW Effective August 10, 2017, but not earlier, the criteria for a disability rating of 40 percent, but not higher, for service-connected lumbar spine disability have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237-5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 2003 to June 2006. The case is on appeal from a May 2015 rating decision, which adjudicated numerous claims, including a grant of left lower extremity lumbar radiculopathy with a rating of 10 percent effective December 9, 2014; continuation of the 10 percent rating for right lower extremity radiculopathy and the 20 percent rating for the Veteran’s lumbar spine degenerative disease; and confirm/continuation of the prior denial of service connection for bilateral hearing loss. In his January 2016 substantive appeal (Form 9), the Veteran specifically limited his appeal to the rating of his service-connected lumbar spine disability. In a rating decision dated in January 2016, the RO granted service connection for erectile dysfunction and special monthly compensation, effective December 10, 2014. In his January 2016 Form 9, the Veteran requested a Board hearing. In correspondence dated in February 2017, he withdrew that request. In a rating decision dated in May 2017, the RO granted service connection for associated bowel and bladder incontinence with a rating of 10 percent each, effective December 9, 2014. In correspondence dated in March 2018, the Veteran’s representative waived agency of original jurisdiction (AOJ) review of all evidence since the May 2017 supplemental statement of the case (SSOC). The Board notes that the representative also discussed the issue of service connection for hearing loss; however, that issue is not on appeal. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). A disability rating higher than 20 percent for service-connected lumbar spine disability. In a rating decision dated in October 2006, the RO granted service connection for degenerative disc disease of the lumbar spine with herniated nucleus pulposus with a rating of 20 percent effective June 3, 2006. In December 2014, the Veteran filed his claim for an increased rating. In a March 2018 brief, the Veteran’s representative contended that the maximum benefit be allowed either on a schedular or extraschedular basis. Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. The Veteran’s service-connected lumbar spine disability has been rated under DC 5237-5242 throughout the appeal period. Whether evaluated under the lumbosacral strain provisions of DC 5237, or the degenerative arthritis provisions of DC 5242, the criteria are the same, and provide for a 20 percent rating where forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, or where the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or when there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. See 38 C.F.R. § 4.71a, DC 5237 and 5242. A 40 percent rating is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less; or if there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine; and the highest rating of 100 percent is warranted when there is unfavorable ankylosis of the entire spine. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal ranges of motion for each component of spinal motion provided are the maximum that can be used for calculation of the combined range of motion. See 38 C.F.R. § 4.71a, Note (2). The rating schedule also includes criteria for evaluating intervertebral disc disease. See 38 C.F.R. § 4.71a, DC 5243. Under DC 5243, a 40 percent rating requires incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; and a rating of 60 percent is warranted requires incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. For purposes of evaluation under DC 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. 38 C.F.R. § 4.71a, DC 5243, Note (1). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). Possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45; Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. To accord justice to the exceptional case where the schedular evaluation is inadequate to rate a single service-connected disability, the Director of Compensation Service or his or her delegate is authorized to approve an extra-schedular evaluation commensurate with the average impairment of earning capacity due exclusively to the disability. The governing norm in these exceptional cases is a finding that application of the regular schedular standards is impractical because the disability is so exceptional or unusual due to such related factors as marked interference with employment or frequent periods of hospitalization. 38 C.F.R. § 3.321(b). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Analysis Medical records dating from 2013 chronicle complaints of lumbar pain and spasms and reduced range of motion throughout the appeal period. See, e.g., VA medical records dated in January 2014, which read “limitation in AROM, more limitation in extension then flexion.” See also April 2015 VA examination results, which found forward flexion from zero to 60 degrees; extension from zero to 15 degrees, and left and right lateral flexion and lateral rotation from zero to 30 degrees. They also show that the Veteran has had periods of prescribed bedrest due to his low back pain. See, e.g., February 2016 letter from private physician, who informs that he prescribed 10 days bedrest from November-December 2015 secondary to low back complaints. However, there is no record of flexion limited to 30 degrees or less (much less ankylosis) until August 2017, when range of motion testing found flexion less than 30 degrees. See August 2017 VA examination report. The criteria for a disability rating of 40 percent are therefore met beginning August 10, 2017. This is the date entitlement arose for a higher rating as there was a factually ascertainable increase in severity. 38 C.F.R. §§ 3.400(o)(1); 4.71a, DC 5237-5242. This is particularly so when reasonable doubt is resolved in the Veteran’s favor. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. A higher rating is also not warranted prior to August 10, 2017. The earlier April 2015 VA examination showed less severe limitation of motion. Even when considering painful motion and other factors, the evidence does not show an approximation to 30 degrees of flexion or less. Additionally, although there is evidence of treatment with medication, the April 2015 report does not reflect that medication influenced the results. Thus, the Board does not find that discounting the ameliorative effects of medication results in a higher rating prior to August 10, 2017. The evidence also does not support a rating higher than 40 percent at any time because ankylosis has not been shown. Examinations have not revealed ankylosis and the definition of ankylosis is not met where some movement is retained. The criteria for a disability rating higher than 40 percent are therefore not met and the benefit-of-the-doubt doctrine is not further applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. In this regard, the Board notes that the 2017 examiner also averred that the Veteran had had at least four weeks of prescribed bed rest during the past 12 month period. See August 2017 VA examination report, p. 9), which supports the criteria for a 40 percent rating under DC 5243. However, the evidence is sufficient for a 40 percent rating under the assigned DC; and a separate 40 percent rating under DC 5243 in tandem with a 40 percent under DC 5237-5242 is not permissible. See 38 C.F.R. § 4.14, regarding VA’s prohibition against pyramiding. There is also no record of at least six weeks of prescribed bed rest during any past 12 month period. 38 C.F.R. § 4.71a, DC 5243. Evaluation under DC 5243 is therefore not needed at this time. (Continued on the next page)   As for an extraschedular rating, the Veteran’s representative did not provide any specific contention in this regard. No symptoms uncounted for by the Rating Schedule have been expressly identified or reasonably raised by the record. In fact, as set forth in Note (1) of the DC, separate ratings as associated with the lumbar spine disability have been assigned for urinary incontinence, bowel incontinence, right lower extremity radiculopathy, left lower extremity radiculopathy, and erectile dysfunction. Additionally, service connection for GERD has been granted on a secondary basis. Thus, further extraschedular consideration is not warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Childers, Counsel