Citation Nr: 18141451 Decision Date: 10/11/18 Archive Date: 10/10/18 DOCKET NO. 14-37 401 DATE: October 11, 2018 ORDER An initial rating of 20 percent, but not higher, for the service-connected back disability is granted. FINDING OF FACT Throughout the period on appeal, the Veteran’s lumbar spine disorder has been characterized by pain and limitation of motion with forward flexion of the thoracolumbar spine estimated to be more than 30 degrees but less than 60 degrees during a flare-up, and muscle spasms requiring near-continuous medication for control; but, intervertebral disc syndrome with incapacitating episodes requiring physician-prescribed bedrest for at least 4 weeks during the past 12 months, have not been shown. CONCLUSION OF LAW Resolving all doubt in favor of the Veteran, the criteria for the assignment of an initial rating of 20 percent for the service-connected lumbar spine disability have been more nearly approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code (DC) 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1978 to April 1992. In his October 2014 substantive appeal, the Veteran requested a Board hearing which was scheduled for November 2015. However, the Veteran failed to attend the hearing without good cause and therefore his hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d). Increased Ratings Entitlement to an initial rating in excess of 10 percent for the service-connected back disability The Veteran is seeking an increased rating for his service-connected back disability. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 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. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant 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. §§ 4.10, 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. In cases where the Veteran’s claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran currently receives a 10 percent disability rating for his service-connected back disability under 38 C.F.R. § 4.71a, DC 5237 (addressing lumbar strains). A 20 percent rating is warranted when the evidence shows: • Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; • Combined range of motion of the thoracolumbar spine not greater than 120 degrees; • Muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis; or, • Incapacitating episodes of IVDS having a total duration of at least two weeks, but less than four weeks, during the past 12 months. 38 C.F.R. § 4.71a, DCs 5237, 5243. Based on the evidence of record, and resolving all doubt in the Veteran’s favor, a rating of 20 percent, but not higher, is warranted for the entire period on appeal. Specifically, at an April 2013 VA examination, the Veteran reported worsening back pain that is relieved by over-the-counter mediation and the application of heat. The Veteran also reported flare-ups that causes additional pain and limit his ability to perform certain occupational tasks. On examination, the examiner the Veteran exhibited 80 degrees of forward flexion and a combined range of motion of 170 degrees, with painful motion that does not result in additional functional limitation. Although there was no evidence of additional loss of forward flexion or functioning during flare-ups, or repetitive testing, the Veteran’s extension was limited by pain to only 5 degrees. There was no evidence of guarding, muscle spasms, ankylosis, or incapacitating episodes of IVDS. However, an October 2014 private MRI report of the lumbar spine reveals moderate degenerative disc disease at L5-S1, possibly with a small superiorly extruded central disc herniation. Furthermore, the Veteran testified at a December 2014 RO hearing that his back pain was constant and he was heavily medicated because of his back pain. The Veteran also testified the pain occasionally renders him immobile. The Veteran’s most recent February 2015 VA examination reflects lumbar spine range of motion and back symptoms that are similar to the findings from April 2013. The examiner, however, was unable to state the amount of additional functional limitation during a flare-up without resorting to speculation. Here, the Veteran continued to report back pain that limits physical activities such as sitting, standing, bending, and lifting, and further indicated that he sometimes uses a walker. On examination, the Veteran exhibited forward flexion to 80 degrees, and a combined range of motion to 170 degrees, with painful motion that does not result in additional functional loss. Given that the Veteran testified that he suffers from flare-ups that require him to lay down; and, that he requires strong medication for pain control, but continues to be in constant pain, the Board finds that the overall disability picture more nearly approximates the criteria for the assignment of a 20 percent rating. Although the February 2015 VA examiner stated that he could not opine as to the amount of additional functional limitation during a flare-up without resorting to speculation, there is no reason to doubt the Veteran’s credibility with regard to his December 2014 RO hearing testimony. Additionally, his testimony is consistent with the findings of a disc herniation shown on MRI. In this case, the Board has assigned a higher disability rating on the basis of functional loss due to fatigability, incoordination, pain on movement, pain on weight-bearing, flare-ups, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59; see Sharp v. Shinseki, 29 Vet. App. 26 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016); DeLuca v. Brown, 8 Vet. App. 206 -07 (1995). Next, when evaluating the extent of the Veteran’s lumbar spine disability, the Board is required to consider whether a separate evaluation is warranted for any associated neurological abnormality including, but not limited to, bowel or bladder impairment, neurological impairment in the extremities or other such disorders, which are to be evaluated under the appropriate diagnostic code. See 38 C.F.R. § 4.71(a). In this case, the medical evidence does not reveal evidence of any neurological abnormalities or associated neurological impairments related to his lumbar spine disability during the period on appeal. Specifically, the Veteran’s October 2012 and February 2015 VA examinations did not report any neurological impairments, including radiculopathy and bladder impairment, that were related to his service-connected lumbar spine disability, nor has the Veteran asserted otherwise. Finally, the Board acknowledges the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), that a total rating based on individual unemployability due to service-connected disability (TDIU) claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. In this regard, the evidence reflects that he is working as a care-giver for an elderly patient. Moreover, the Veteran does not allege that he has been unable to work due to his service-connected back disability. Therefore, a TDIU claim is not raised by the record. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). L. B. CRYAN Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Meyer, Associate Counsel