Citation Nr: 18142728 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 15-35 222A DATE: October 16, 2018 ORDER An effective date of November 13, 2014, but not earlier, for the assignment of the 40 percent rating for the lumbar spine disability, is granted. From the beginning of the claim to November 13, 2014, a rating higher than 10 percent for the lumbar spine disability is denied. FINDINGS OF FACT 1. VA received the Veteran’s claim for an increased rating for his lumbar spine disability on August 13, 2012, and no unadjudicated claim was reasonably raised prior to that date of claim. 2. Entitlement to benefits for a 40 percent rating arose on November 13, 2014, but not earlier. 3. Prior to November 13, 2014, there was no evidence of 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; or intervertebral disc syndrome (IVDS) with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. CONCLUSIONS OF LAW 1. The criteria for an effective date of November 13, 2014, but no earlier, for the assignment of the 40 percent rating for a lumbar spine disability are approximated. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). 2. The criteria for a rating higher than 10 percent from the beginning of the claim to November 13, 2014, are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1971 to October 1991. By way of procedural history, a July 1994 rating decision granted service connection for a back disability and assigned a 10 percent disability rating. In August 2012, the Veteran filed a claim for increased rating for his back disability, and in a December 2012 rating decision, the RO denied the Veteran’s claim. Thereafter, he submitted a timely notice of disagreement (NOD) in February 2013, in which in disagreed with the assigned evaluation of the disability and indicated that he should be awarded a 40 percent disability rating. Prior to the issuance of a statement of the case (SOC), in February 2015, the Veteran submitted another claim for increased rating for his back disability; however, the claim was already in appellate status. Subsequently, on July 30, 2015, the RO issued a rating decision increasing the Veteran’s back disability to 40 percent, effective March 21, 2015, and a day later, issued a SOC denying increased rating in excess of 40 percent. In response, the Veteran submitted a substantive appeal in October 2015, in which he indicated that he disagreed with the effective date for the assignment of the 40 percent rating. The RO issued a supplemental statement of the case (SSOC) in March 2016, denying earlier effective date for the assignment of the 40 percent disability rating. Notably, the Veteran explicitly indicated that he was only in disagreement with the effective date assigned for the increased rating of 40 percent. Earlier Effective Date for Increased Rating for a Lumbar Spine Disability The Veteran asserts that the assignment of the 40 percent rating warrants an effective date earlier than March 21, 2015. The effective date of an increased rating is either the date of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(1). The exception to the rule allows for the earliest date as of which it was factually ascertainable that an increase in disability had occurred if the claim was received within one year from such date; otherwise, the effective date is the date of receipt of the claim. 38 C.F.R. § 3.400(o)(2). After a careful review of the evidence, lay and medical, the Board finds that an earlier effective date is warranted. VA received the Veteran’s increased rating claim on August 13, 2012, at which time his lumbar spine disability was rated as 10 percent disabling. There is no prior unadjudicated claim for an increase for the lumbar spine disability. Moreover, it was not factually ascertainable that an increase to 40 percent had occurred within the one-year period prior to the date of claim. There is no lay or medical evidence relevant to the Veteran’s lumbar spine disability from a year prior to his claim. Nonetheless, the Board finds that entitlement arose on November 13, 2014, the date of applicable treatment notes. In this regard, VA treatment notes dated in November 2014 indicate that the Veteran’s back had “very limited motion in any direction with pain (lateral bending, extension, and flexion).” Despite the lack of objective medical records showing measurement of range of motion in degrees between the November 2012 VA examination and the March 2015 VA examination, the treatment notes dated on November 13, 2014, noted that his range of motion was “very limited” in all ranges with objective evidence of pain. Specifically, the Board finds that this indication is consistent with the recorded range of motion during the March 2015 VA examination which is consistent with a 40 percent rating. Entitlement did not arise prior to November 13, 2014. Forward flexion of the thoracolumbar spine during the 2012 exam was nearly normal (to 90 degrees and 80 degrees after three repetitions). Thus, even considering the loss of 10 degrees of flexion upon repetitive use, the criteria for a 40 percent rating were not met. Moreover, the November 2012 VA examination report indicates that the Veteran’s IVDS did not result in incapacitating episodes over the previous 12-months, and a review of the medical records do not reveal any evidence to the contrary. The Board acknowledges that the Veteran seeks an effective date from the date of the claim, which was August 13, 2012. However, it has been established that entitlement to the 40 percent rating did not arise until November 13, 2014, and the later of those two dates is November 13, 2014. 38 C.F.R. § 3.400. Therefore, the Board assigns an effective date of November 13, 2014, but no earlier, for the assignment of the 40 percent rating for lumbar spine disability. Although the Veteran’s most recent argument pertains only to the effective date assigned for the 40 percent rating, the Board will also consider whether a rating higher than 10 percent is warranted prior to November 13, 2014. To the extent that the Veteran continues to disagree with the 10 percent rating assigned from August 13, 2012 to the newly assigned November 13, 2014, effective date, the Board finds that a higher rating is not warranted. His lumbar spine disability is rated under Diagnostic Code 5243, which addresses IVDS. To warrant a higher rating of 20 percent under the Formula for Rating IVDS, there must be evidence of incapacitating episodes 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. A higher rating of 20 percent under the General Formula for Rating Disabilities of the Spine requires 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. Id. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Turning to the evidence, the Veteran underwent a VA examination in November 2012 to determine the severity of his back disability. The Veteran reported constant back pain with impairment of movement when bending or twisting. He further noted that he was prescribed physical therapy, use of stimulators, and muscle building exercise without improvement. He noted flare-ups described as extreme pain with movement, bending, and twisting. He indicated that during a flare-up, sitting or lying down do not help and he must take muscle relaxants and pain medications. Upon physical examination, range of motion of the lumbar spine revealed forward flexion to 90 degrees with objective evidence of painful motion at 0 degrees; extension to 10 degrees with evidence of objective evidence of painful motion at 0 degrees; lateral flexion to 10 degrees with objective evidence of painful motion at 0 degrees, bilaterally; right lateral rotation to 20 degrees objective evidence of painful motion at 0 degrees; and, left lateral rotation to 25 degrees objective evidence of painful motion at 0 degrees. After three repetitions, forward flexion was to 80 degrees; extension to 10 degrees; right and left lateral flexion to 10 degrees; right lateral rotation to 15 degrees; and, left lateral rotation to 20 degrees. The examiner indicated that the Veteran had additional limitation in range of motion following repetitive use testing, and had functional loss due to less movement than normal and pain on movement. There was no evidence of pain on palpation or muscle spasms. Muscle strength was normal with no evidence of muscle atrophy. Reflex examination was normal in the knees but absent in the ankles. Sensory examination was normal, and straight leg raising test was negative, bilaterally. There was evidence of mild bilateral radiculopathy due to numbness. His gait and posture were within normal limits. The Veteran had IVDS, but the examiner noted that he did not have any incapacitating episodes over the previous 12-months. The Veteran was not using any assistive devices. The examiner noted that the impact of the lumbar spine condition on the Veteran’s ability to work was with problems lifting; bending; turning; and, walking up or down stairs or inclines. VA treatment notes dated in May 2014 contain MRI of the lumbar spine, which was abnormal and revealed disc bulges and spinal stenosis. X-rays studies at the same time revealed mild degenerative changes and mild spurring. Thereafter, in June 2014, it was noted that the Veteran reported increased stiffness in back in the morning. The medical professional noted pain with all movements, range of motion testing, and flexibility testing. In August 2014, the medical professional noted that the Veteran continued to have low back pain, and showed little progress also due to his line of work, requiring heavy repetitive movement and loading. After a careful review of the record, both lay and medical, the Board finds that prior to November 13, 2014, a rating in excess of 10 percent is not warranted. Forward flexion of the thoracolumbar spine has been normal during this appeal period and there is no evidence of muscle spasm or guarding that was severe enough to result in an abnormal gait or abnormal spinal contour. In addition, there is no evidence of favorable or unfavorable ankylosis of the thoracolumbar spine or entire spine. For these reasons, a rating of in excess of 10 percent for a lumbar spine disability is not warranted under the General Rating Formula. The Board also considered the Veteran’s reported impairment of function, specifically his reported chronic low back pain, and has considered additional limitations of motion due to pain. Nevertheless, even considering additional limitation of motion or function of the thoracolumbar spine due to pain or other symptoms such as less movement or stiffness (see 38 C.F.R. §§ 4.40, 4.45, 4.59), the evidence does not show that the lumbar spine disability more nearly approximates the criteria for a higher rating for this period on appeal. To the extent that the Veteran has reported experiencing functional impairment, this impairment is contemplated by the current rating assigned. As such, a higher rating based on pain and functional loss is not warranted. Notably, even after repetitive use, the Veteran’s forward flexion was at worse to 80 degrees, and combined range of motion was at worse to 145 degrees, which do not more nearly approximate forward flexion to 60 degrees or combined range of motion of no more than 120 degrees. While the Veteran continuously complained of low back pain, during this period on appeal, there was no indication as to severe limitation of motion or other symptoms that would warrant a higher rating, and the available medical evidence shows that between August 2012 and May 2014, the Veteran has not sought treatment for his back. The Board further finds that a higher disability rating is not warranted under the IVDS Formula. 38 C.F.R. § 4.71a, DC 5243. The November 2012 VA examination report indicates that the Veteran’s IVDS did not result in incapacitating episodes over the previous 12-months, and a review of the medical records do not reveal any evidence to the contrary; therefore, a higher rating under the IVDS Formula is not in order. Accordingly, prior to November 13, 2014, the preponderance of the evidence is against a rating higher than 10 percent for the Veteran’s lumbar spine disability. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel