Citation Nr: 18141477 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 14-14 227 DATE: October 10, 2018 ORDER Entitlement to a rating of 20 percent, but not higher, prior to May 20, 2014 for degenerative arthritis of the lumbar spine is granted. Entitlement to a rating in excess of 20 percent from May 20, 2014 to December 14, 2016 for degenerative arthritis of the lumbar spine is denied. Entitlement to a rating in excess of 40 percent from December 15, 2016 for degenerative arthritis of the lumbar spine is denied. REMANDED Entitlement to an increased rating for degenerative arthritis of the lumbar spine on an extraschedular basis is remanded. FINDINGS OF FACT 1. The Veteran’s degenerative arthritis of the lumbar spine prior to May 20, 2014 was primarily manifested by pain and flare-ups consisting of increased pain and his back ‘going out’ one to two times per month. 2. At no time from May 20, 2014 to December 14, 2016 has the Veteran’s degenerative arthritis of the lumbar spine resulted in limitation of forward flexion of the thoracolumbar spine of 30 degrees or less; ankylosis of the entire thoracolumbar spine or of the entire spine, or incapacitating episodes of intervertebral disc syndrome having a total duration of at least 6 weeks. 3. At no time from December 15, 2016 has the Veteran’s degenerative arthritis of the lumbar spine resulted in ankylosis of the thoracolumbar spine, nor is there a finding of incapacitating episodes of intervertebral disc syndrome having a total duration of at least 6 weeks. CONCLUSIONS OF LAW 1. The criteria for a rating of 20 percent rating, but not higher, prior to May 20, 2014 for degenerative arthritis of the lumbar spine have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.13, 4.40, 4.45, 4.71a, Diagnostic Codes 5242-5243. 2. The criteria for a rating in excess of 20 percent from May 20, 2014 to December 14, 2016 for degenerative arthritis of the lumbar spine have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.13, 4.40, 4.45, 4.71a, Diagnostic Codes 5242-5243. 3. The criteria a rating in excess of 40 percent from December 15, 2016 for degenerative arthritis of the lumbar spine have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.13, 4.40, 4.45, 4.71a, Diagnostic Codes 5242-5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1966 to August 1970. In June 2016, the Veteran testified via video conference before the undersigned. In September 2016, the Board remanded the Veteran’s claim for a rating in excess of 10 percent for degenerative arthritis of the lumbar spine for additional development. Subsequently, in a March 2017 decision the RO granted a rating of 20 percent for degenerative arthritis of the lumbar spine effective May 20, 2014, the date the Veteran’s private treatment records show an increase in severity, and a rating of 40 percent for degenerative arthritis of the lumbar spine effective December 15, 2016, the date of the Veteran’s VA examination. In August 2017, the Board denied entitlement to a rating in excess of 10 percent prior to May 20, 2014, in excess of 20 percent from May 20, 2014 to December 14, 2016, and in excess of 40 percent from December 15, 2016. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court) which, in an April 2018 Order, vacated and remanded the issues for action consistent with a Joint Motion for Partial Remand (Joint Motion). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2018). The Schedule is primarily a guide in the rating of disability resulting from all types of diseases and injuries encountered as a result of or incident to service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). The Veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the question for consideration is the propriety of the initial disability rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Staged ratings are also appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating based on functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination, to include during flare-ups and with repeated use, when those factors are not contemplated in the relevant rating criteria. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine is greater than 30 degrees but not greater than 40 degrees; or the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or the combined range of motion of the cervical spine is greater than 170 degrees but not greater than 335 degrees; or where there is 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 rating is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or where 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. A 40 percent rating is warranted where forward flexion of the thoracolumbar spine is 30 degrees or less; or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for ankylosis of the entire spine. 38 C.F.R. § 4.71a (2018). Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees; extension from 0 to 30 degrees; lateral flexion bilaterally from 0 to 30 degrees; and rotation bilaterally from 0 to 30 degrees. 38 C.F.R. § 4.71a, Plate V (2018). 1. Entitlement to a rating in excess of 10 percent prior to May 20, 2014 for degenerative arthritis of the lumbar spine The Veteran contends that prior to May 20, 2014, a rating in excess of 10 percent is warranted for his service-connected lumbar spine disability based on flare-ups resulting in increased pain and his back ‘going out’ one to two times per month. Lumbar spine examinations were conducted in March 2012 and August 2013. The March 2012 VA examiner noted the Veteran’s subjective reports that his usual level of pain was a 6-10 severity on a 1-10 scale, decreased motion, interference with sitting, standing and/or weight-bearing, along with flare-ups in which the Veteran stated his back ‘goes out’ one to two times per month. The Veteran had forward flexion to 80 degrees, extension to 20 degrees, left and right lateral flexion to 25 degrees, left and right lateral rotation to 20 degrees, with no objective evidence of painful motion. Repetitive use testing did not result in additional limitation in range of motion. The Veteran had guarding and/or muscle spasm but it did not result in abnormal gait or spinal contour. There was no muscle atrophy or lumbar spine ankylosis. Further loss of range of motion due to factors such as pain, weakness, instability or fatigability was not noted. The August 2013 VA examiner noted the Veteran’s subjective reports that his usual level of pain was a 6-10 severity on a 1-10 scale. The Veteran did not report flare-ups at this examination. The Veteran had forward flexion to 90 degrees, extension to 20 degrees, left and right lateral flexion to 30 degrees, left and right lateral rotation to 30 degrees, with no objective evidence of painful motion. Repetitive use testing did not result in additional limitation in range of motion. There was no muscle atrophy or lumbar spine ankylosis. Further loss of range of motion due to factors such as pain, weakness, instability or fatigability was not noted. The Veteran reported occasional use of a cane for his back condition. Treatment records associated with the claims file reflect ongoing treatment for a low back disability to include prescription pain medications and injections. After reviewing all the evidence in light of the above criteria, the Board finds that prior to May 20, 2014, a rating of 20 percent, but not higher, is warranted. During this time period, the Veteran had forward flexion of at least 80 degrees but he also reported his pain was usually a 6 out of 10 with flare-ups of increased pain and his back ‘going out’ one to two times per month. Viewing the evidence in the light most favorable to the Veteran, and taking into account the Veteran’s reported flare-ups, the Board finds that an increased rating to 20 percent is warranted for the period prior to May 20, 2014. During this time period, the Veteran has not had forward flexion of 30 degrees or less, or ankylosis of the entire thoracolumbar spine that would warrant a rating higher than 20 percent. Moreover, additional compensation based on functional loss due to pain and other factors is not warranted. 38 C.F.R. §§ 4.40, 4.45 (2018); DeLuca v. Brown, 8 Vet. App. 202 (1995). The 20 percent evaluation is based on compensation for functional loss due to painful movement, and the evidence does not show that there is additional functional loss that is not compensated already in the assignment of a 20 percent evaluation. In determining the Veteran’s overall functioning, the Board has considered the DeLuca factors noted above, the Veteran’s reported symptoms, the clinical records, and the VA examination reports. In light of the above medical and lay evidence, even when considering the Veteran's complaints of pain, and other functional loss factors discussed above, throughout the period prior to May 20, 2014, the evidence does not show that there is functional loss more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Although range of motion is limited, there has been no limitation of range of motion or IVDS in the range required for a higher 40 percent rating under Diagnostic Code 5242. In making this determination, the Board has considered the impact of functional loss upon the Veteran's range of motion of the thoracolumbar spine. Specifically, even when considering the impact of pain and flare-up conditions, the Veteran's pain has not been shown by competent credible evidence to cause a limitation of motion or other functional loss which would warrant a rating in excess of the assigned 20 percent. Thus, when the ranges of motion in the back are considered, together with the evidence showing functional loss, to include the findings pertaining to normal muscle strength and the lack of evidence of muscle atrophy or ankylosis, the Board finds that there is insufficient evidence of objective pain on motion to such extent, or any other functional loss, to warrant a rating in excess of 20 percent. Therefore, a rating of 20 percent, but not higher, is warranted based on the evidence of record. The Board has not rated the Veteran’s degenerative arthritis of the lumbar spine under Diagnostic Code 5243, Formula for Rating IVDS Based on Incapacitating Episodes, as neither examiner found evidence of IVDS. 2. Entitlement to a rating in excess of 20 percent from May 20, 2014 to December 14, 2016 for degenerative arthritis of the lumbar spine The Veteran contends that for the period from May 20, 2014 to December 14, 2016, a rating in excess of 20 percent is warranted for his degenerative arthritis of the lumbar spine disability. Treatment notes from this period show that the Veteran received ongoing treatment for his chronic low back pain. In May 2014, the Veteran’s private physician conducted thoracolumbar spine range of motion testing revealing forward flexion to 45 degrees, extension to 10 degrees, left and right lateral flexion to 15 degrees, left and right lateral rotation to 10 degrees, with objective evidence of painful motion at the same degrees. In October 2015, while obtaining treatment for his chronic low back pain, the Veteran reported that his back pain was exacerbated with lying in bed and driving, and that his back pain interfered with his ability to drive. Other treatment notes during this time period on appeal reflect that the Veteran received injections and prescription medications. In general, his treating physician found that the Veteran had no atrophy or spasm, and had normal strength testing. The Veteran’s gait was said to be antalgic. Additionally, the physician noted diminished range of motion in all planes, however no further range of motion testing was conducted other than those noted above in May 2014. During the Veteran’s June 2016 Board hearing, the Veteran reported his back pain has continued to get worse as he has gotten older and that he has tried various treatments such as powerful prescription painkillers, patches, trigger point injections, epidurals, and exercises to alleviate the pain. The Veteran stated that for the last two or three years, he has worked one day a week driving to about 30 different construction sites to deliver payroll checks to the employees. He stated that his back pain increases with driving and he has to take painkillers in order to deliver the checks. The Veteran reported that the painkillers make him sleepy which makes driving for eight hours too dangerous. The Board notes that the Veteran’s prior occupation was a lawyer and the Veteran specifically stated that his back condition was not the reason that occupation ended. After review of the evidence, the Board finds that from May 20, 2014 to December 15, 2016, a rating higher than 20 percent is not warranted. The Veteran’s most limited range of motion of the thoracolumbar spine was demonstrated during the May 2014 private physician visit during which the Veteran manifested forward flexion to 45 degrees with consideration of pain. The combined range of motion was 105 degrees. A rating in excess of 20 percent is not warranted as there is no evidence of ankylosis or forward flexion that most nearly approximates 30 degrees. As noted above, the Veteran manifests limitation of spinal motion that is properly contemplated by a 20 percent evaluation. The Board has considered whether an increased rating is appropriate based on functional factors, but notes that the range of motion measurements from the May 2014 range of motion testing includes consideration of the point at which the Veteran experienced pain during testing. The Veteran has reported, and testified, that his back pain restricted his ability to sit/drive for long periods of time and was aggravated by lying down, but the Board finds that these functional impairments are contemplated by a 20 percent evaluation based on the Veteran's loss of motion and complaints of pain with movement. Thus, the evidence does not establish impairment that is consistent with an additional decrease in range of motion such that the disability most nearly approximates the criteria associated with a 40 percent evaluation. Turning to whether an increased rating is warranted under the criteria pertaining to intervertebral disc syndrome, under 38 C.F.R. § 4.71a, Diagnostic Code 5243, a 40 percent evaluation contemplates incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months. An "incapacitating episode" is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bedrest prescribed by a physician and treatment by a physician. Associated objective neurological abnormalities (e.g., bladder and bowel impairment) are to be evaluated separately. The record does not indicate, and the Veteran does not contend, that he has experienced any incapacitating episodes as defined by VA due to service-connected back pain. The record does not establish that the Veteran has experienced incapacitating episodes as defined by VA for a period of at least four to six weeks during the claims period and an increased rating under the formula for rating intervertebral disc syndrome is not warranted. In sum, the Veteran’s impairment of the thoracolumbar spine from May 20, 2014 to December 14, 2016 is appropriately rated as 20 percent disabling and no increased rating is warranted for this time period. The Board notes that the Veteran’s report that pain medication taken for back pain causes drowsiness which interferes with his ability to drive for work reasonably raises the issue of extraschedular consideration. As such, a claim for an increased rating on an extraschedular basis is remanded for referral to the Director of Compensation. 3. Entitlement to a rating in excess of 40 percent from December 15, 2016 for degenerative arthritis of the lumbar spine The Board has reviewed the entirety of the medical evidence of record, including the pertinent VA examination report in December 2016, as well as the private medical evidence submitted by the Veteran. The December 2016 VA examination was conducted during a flare-up. On examination, the Veteran had forward flexion to 30, extension to 5, right lateral flexion to 15, left lateral flexion to 20, right lateral rotation to 10, and left lateral rotation to 15. There was additional loss of ROM after 3 repetitions: forward flexion to 25, extension- unable; right lateral flexion to 8, left lateral flexion to 12, right lateral rotation to 8, left lateral rotation to 15. Pain, fatigue, weakness, lack of endurance, and incoordination caused functional loss. The examiner was unable to say without mere speculation if pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time because exam not performed immediately after repetitive use over time. As the examination was conducted during a flare-up, the examiner noted that pain, weakness, fatigability or incoordination significantly limited functional ability with flare-ups. The Veteran did not have guarding and muscle spasm, muscle atrophy, or ankylosis. None of the aforementioned evidence indicates that the Veteran has ankylosis of the lumbar spine; on the contrary, the evidence shows the Veteran has maintained range of motion in his spine throughout the appeal period. As such, a rating in excess of 40 percent under the General Rating Formula is not warranted. Additionally, an increased rating is not warranted due to pain, weakness, fatigability or incoordination with flare-ups as the examination was conducted during a flare-up and has been considered in the 40 percent disability rating assigned. Based on the Veteran's statements and the medical evidence of record, the Board considered whether the Veteran may be entitled to a higher rating under Diagnostic Code 5243, which pertains to intervertebral disc syndrome (IVDS). Diagnostic Code 5243 provides that a 60 percent rating is warranted where the Veteran has incapacitating episodes with a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2018). Note (1) to Diagnostic Code 5243 states that 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. The December 2016 VA examination report indicated that the Veteran had IVDS, however the examiner noted that the Veteran had not had any episodes of acute signs and symptoms that required bed rest prescribed by a physician. Thus, a rating under Diagnostic Code 5243 is not warranted. In sum, the Veteran’s impairment of the thoracolumbar spine from December 15, 2016 is appropriately rated as 40 percent disabling and no increased rating is warranted for this time period. As noted above, based on the Veteran’s statements that pain medication taken for back pain causes drowsiness which interferes with his ability to drive for work, the issue of extraschedular consideration has been reasonably raised. As such, a claim for an increased rating on an extraschedular basis is remanded for referral to the Director of Compensation. REASONS FOR REMAND Entitlement to an increased rating for degenerative arthritis of the lumbar spine on an extraschedular basis is remanded. Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 20, 4.27. However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual appellant's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. In exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321 (b). In the April 2018 Joint Motion for Partial Remand, the parties found that, in the August 2017 decision, the Board failed to consider whether referral for an extraschedular rating for degenerative arthritis of the lumbar spine was warranted. It was found that the Board did not address the appellant's reports since October 2015 that pain medication necessary to treat his chronic back pain caused drowsiness, which in turn adversely impacted his ability to drive for work. The Joint Motion for Partial Remand indicated that the Board must consider the nature and severity of the Veteran's symptoms in determining whether referral for extraschedular consideration is warranted for his lumbar spine disability. Consideration of referral for an extraschedular rating requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation Service to determine whether an extraschedular rating is warranted. There must be sufficient evidence showing that a Veteran's disability picture is not contemplated by the rating schedule in order for the case to be referred for a determination of whether the assignment of an extraschedular rating is warranted. As such, the Board finds that there must be a determination as to whether the Veteran's symptoms due to his service-connected lumbar spine disability are not contemplated by the rating criteria, including his complaints of drowsiness caused by painkillers necessary to combat his low back pain. The Board itself may not assign an extraschedular rating in the first instance, but must leave that initial determination to the Under Secretary for Benefits or the Director of Compensation Service. Bowling v. Principi, 15 Vet. App. 1, 10 (2001) (recognizing that "the [Board] is not authorized to assign an extraschedular rating in the first instance under 38 C.F.R. § 3.321 (b)" or 38 C.F.R. § 4.16 (b)). The Board may, however, consider and adjudicate the issue of whether the RO should refer such a matter to appropriate personnel for extraschedular consideration pursuant to the procedures of 38 C.F.R. § 3.321 (b)(1) and further may determine, after an initial review by the authorities pursuant to 38 C.F.R. § 3.321 (b)(1), the propriety of assigning an extraschedular evaluation. Here, the Board agrees that the drowsiness caused by painkillers necessary to treat the Veteran’s service-connected back disability is not contemplated by the rating criteria. Therefore, on remand, consideration of referral to the Director of Compensation Service for extraschedular rating should be accomplished. The matter is REMANDED for the following action: The AOJ must forward the case to the Director, Compensation Service for consideration of the assignment of an increased rating for the degenerative arthritis of the thoracolumbar spine disability on an extraschedular basis from May 20, 2014 pursuant to the provisions of 38 C.F.R. § 3.321 (b)(1). Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Mitchell, Associate Counsel