Citation Nr: 18144387 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 07-38 282 DATE: October 25, 2018 ORDER Entitlement to an increased rating of 40 percent, but no higher, for degenerative joint disease (DJD) at the L5-S1 junction with chronic lumbar back pain is granted from October 3, 2006, subject to controlling regulations governing the payment of monetary awards. FINDINGS OF FACT 1. On October 3, 2006, VA treatment records include a report from the Veteran that his lumbar spine disability had worsened. 2. The Veteran filed the instant increased rating claim for service-connected lumbar spine disability on November 28, 2006. 3. From October 3, 2006, the evidence is at least evenly balanced as to whether the Veteran's lumbar spine disability more nearly approximated flexion to 30 degrees or less with consideration to functional impairment, but it did not more nearly approximate ankylosis or incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, from October 3, 2006, the criteria for a 40 percent increased rating, but no higher, for DJD at the L5-S1 junction with chronic lumbar back pain have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.400(o), 4.1-4.10, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Codes (DCs) 5242-5243. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1995 to August 1997. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This case has previously been before the Board on multiple occasions, most recently in January 2017. The Veteran timely appealed the January 2017 denial of increased ratings for a lumbar spine disability to the United States Court of Appeals for Veterans Claims (Court). In May 2018, pursuant to a Memorandum Decision, the Court vacated the portion of the Board's January 2017 decision that denied an increased lumbar spine evaluation in excess of 20 percent prior to September 18, 2014 and remanded this issue to the Board. The Court affirmed the portion of the January 2017 Board decision denying an increased lumbar spine evaluation in excess of 40 percent from September 18, 2014, and this issue is no longer on appeal. Duties to Notify and Assist The Board notes VA’s duties to notify and assist in substantiating a claim for VA benefits pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C. § 5103, 5103A; 38 C.F.R. § 3.159. This appeal has returned from the Court. The Court found that the January 2007 VA examination did not adequately assess lumbar spine functional loss due to pain and during flare-ups, and the Board did not sufficiently consider favorable evidence in the January 2017 denial of a lumbar spine evaluation in excess of 20 percent prior to September 18, 2014. Cf. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016); 38 C.F.R. §§ 4.40, 4.45, 4.59. The instant decision grants a 40 percent lumbar spine evaluation from October 3, 2006 and the disputed issues in the May 2018 Court Memorandum Decision are now moot. Instead of requesting a retrospective medical opinion as to estimated motion loss, the Board has estimated the reduction in range of lumbar spine motion based on the evidence of record in a manner favorable to the Veteran as indicated in the discussion below. This estimate results in an increased rating from October 3, 2006, the first report of increase within a year of the November 2006 claim for increase. Accordingly, any error from the January 2007 VA examination in assessing additional lumbar spine motion loss due to pain and during flare-ups is not prejudicial. See Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). In sum, the instant decision is favorable to the Veteran and a remand would not raise any reasonable possibility of substantiating entitlement to additional benefits than those granted in the instant decision. Winters v. West, 12 Vet. App. 203, 208 (1999) (en banc) ("[A] remand is not required in those situations where doing so would result in the imposition of unnecessary burdens on the [Board] without the possibility of any benefits flowing to the appellant"); see Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (noting that "[a] veteran's interest may be better served by prompt resolution of his claims rather than by further remands to cure procedural errors that, at the end of the day, may be irrelevant to final resolution and may indeed merely delay resolution"). For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim decided below. Entitlement to an increased lumbar spine evaluation in excess of 20 percent prior to September 18, 2014. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. In general, when 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). Staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 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 of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). 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. The Court has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). In Mitchell, the Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance (38 C.F.R. § 4.40), 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 (38 C.F.R. § 4.45). Joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 38 C.F.R. § 4.59; see also Correia, 28 Vet. App. at 169-170. After accounting for functional loss or impairment, a rating is determined, in this case, based on the 38 C.F.R. § 4.71a criteria. Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of 38 C.F.R. § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). Here, the Veteran's lumbar spine disability is currently rated under 38 C.F.R. §§ 4.71a, DC 5242-5243, which permits rating under either 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 results in the higher rating when all disabilities are combined. 38 C.F.R. § 4.71a. Under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (IVDS Formula), a 20 percent evaluation is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months; and a 60 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a. An "incapacitating episode" for purposes of totaling the cumulative time is defined as "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, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note 1. Under the General Rating Formula, as relevant, a 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or 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 evaluation is warranted where forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. The only higher schedular evaluations under the General Rating Formula are 50 percent for unfavorable ankylosis of the entire thoracolumbar spine and 100 percent for ankylosis of the entire spine. 38 C.F.R. § 4.71a, DC 5242. At this juncture in the appeal, the salient issue is the severity of the Veteran’s lumbar spine disability from the year prior to the November 28, 2006 increase rating claim through September 17, 2014. See May 2018 Court Memorandum Decision; 38 C.F.R. § 3.400(o). The Board will also consider the prior November 2004 VA spine examination to assist in ascertaining functional impairment due to pain and during flare-ups. See also Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (holding in the context of a service connection claim the Board erred in failing to address pre-claim evidence in assessing whether a current disability existed). In November 2004, the Veteran underwent a VA spine examination in connection with a prior claim. As relevant, he reported flare-ups of back pain. He estimated that the additional limitation of motion or functional impairment during flare-ups was between 15 to 75 percent. He reported that he was unable to lift much without triggering a flare-up. He required frequent rest breaks at work to stretch his back and limited his recreational activities. October 3, 2006 VA emergency department records showed that the Veteran had an exacerbation of low back pain lasting less than a week. It was worse than previous episodes. The clinician noted the Veteran could not try physical therapy (PT) because he lived too far away from the clinic. The clinician assessed exacerbation of low back pain. She provided pain medication and recommended imaging studies. On November 28, 2006, the Veteran filed an increased rating claim for his service-connected lumbar spine disability. He reported experienced increased muscle spasms and pain. He had to frequently change positions, but continued to experience significant pain. His used pain medication, but it did not completely relieve his symptoms. The Veteran was afforded a VA spine examination in January 2007. During the examination he complained of chronic tightness, constant dull aching and increased pain with any lifting. He reported increased back pain from sitting for about 10 minutes with radiation to the lower extremities all the way to the foot. He reported that his pain improved with changing position. His pain improved with standing. It worsened throughout the day. It was constant and progressive. The examiner indicated that the Veteran's gait showed some stiffness, but was strong and steady. The Veteran did not require an assistive device. The Veteran reported flare-ups about once a week due to lifting, bending or twisting. He reported that flare-ups lasted about 24 hours and required him to be careful and slow his activities. He denied any incapacitating episodes of back pain. A visual inspection of the back showed adequate alignment. The Veteran complained of tenderness and pain particularly on palpation to the lower LS spine area, worse into the vertebral bodies, less into the paravertebral areas. He also complained of radiation of pain upon palpation, particularly to the L5-S1 aspect, positive for sciatica. No spasms were palpable. On active weight bearing range of motion (ROM), the Veteran exhibited forward flexion to 60 degrees with complaints of pain, facial grimacing and guarding; backward extension to 20 degrees; left and right lateral flexion to 20 degrees; left and right rotation to 25 degrees. His combined ROM for the thoracolumbar spine was 170 degrees. Straight leg raises with active motion was to 60 degrees in the right and to 45 degrees in the left with complaints of pain at the end of the range of motion. The Veteran performed 5 repetitions of forward flexion with no change in ROM noted. The Veteran did complain of increased pain, and some increased facial grimacing and guarding was noted. Reflex, motor and sensory findings did not show any abnormalities. February 2007 VA treatment records showed that the Veteran sought treatment for thoracic back pain. Paravertebral muscle spasm was noted. July 2007 VA treatment records included reports of stable low back pain. The Veteran continued to work as a law enforcement officer, but was considering training to be a nurse. He regularly used pain medication. In his July 2007 notice of disagreement (NOD), the Veteran reported that his back disability significantly interfered with his job. He worked in law enforcement and could not satisfactorily perform physical occupational tasks. He often missed work due to back pain and had been counseled about his absences. He explained that he could not take pain relief medication while at work. However, before the January 2007 VA examination, he took pain medication because of the long trip to the clinic. He stated that during the VA examination, “I made myself bend my back until the pain was so intense that I couldn’t bend anymore.” He reported that he just started vocational rehabilitation because he could not continue his current law enforcement job much longer. October 2007 VA treatment records showed that the Veteran complained about increasing pain while walking with his book bag for school. In the November 2007 substantive appeal, the Veteran reported that he left his job as a law enforcement officer. He was no longer able to perform the required physical duties due to his back disability. He reported that he was in school and continued to have back pain from being in sedentary positions. In July 2010, the Veteran reported that his back disability had worsened. The Veteran contends a lumbar spine disability evaluation in excess of 20 percent is warranted prior to September 18, 2014. Resolving reasonable doubt in his favor, a uniform 40 percent rating for service-connected DJD, lumbar spine is granted from October 3, 2006. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The October 3, 2006 is assigned based upon a report of increased back disability within a year of the November 28, 2006 increased rating claim. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o). The ROM study within the applicable claims period is limited to the January 2007 VA examination report. It does not show lumbar spine forward flexion motion loss more nearly approximating a 40 percent rating. 38 C.F.R. § 4.71a, DC 5242. However, motion loss from functional impairment must also be considered. 38 C.F.R. §§ 4.40, 4.45, 4.59. As noted, the January 2007 VA examination report does not adequately address the Veteran’s report of functional loss due to pain and on flare-ups. See May 2018 Court Memorandum Decision. The additional evidence from the period in question is limited. However, the November 2004 VA examiner noted the Veteran’s estimated motion loss reports as being from 15 to 75 percent of motion loss. The Board considers these reports to be competent and credible and probative on the matter. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007) (lay evidence competent for readily observable symptoms); Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (VA adjudicators may properly consider internal inconsistency, facial plausibility and consistency with other evidence submitted on behalf of the Veteran in weighing evidence). Facially, this report implies that the lumbar spine forward flexion measured to 60 degrees at the January 2007 VA examination would be anywhere from 50 to 15 degrees forward flexion during a flare-up episode. Id. Given the above, the Board resolves reasonable doubt to find that the Veteran’s lumbar spine flexion motion loss more nearly approximate 30 degrees with consideration to functional impairment. Id. The November 2004 report is sufficiently detailed as to estimated lumbar spine motion loss during flare-up episodes. It indicates lumbar spine motion loss during some of the flare-up episodes more nearly approximates the 40 percent rating criteria under DC 5242. Mitchell, 25 Vet. App. at 44; Thompson, 815 F.3d at 785 (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, DC 5242. The additional reports from the Veteran confirm that the lumbar spine disability had increased in severity beginning October 2006 and that he continued to experience flare-ups. Thus, it is reasonable to infer his lumbar motion loss during flare-ups following the November 2004 estimate is likely worse. Caluza, 7 Vet. App. at 506. For these reasons, the Board finds a 40 percent rating for lumbar spine disability is warranted from likely additional motion loss due to pain during periods of activity or flare-ups. The Board has considered whether a rating greater than 40 percent is warranted under the General Rating Formula. 38 C.F.R. § 4.71a, DC 5242. As noted above, a higher 50 percent rating under the General Rating Formula contemplates ankylosis of the lumbar spine disability. There is no evidence suggesting ankylosis of the thoracolumbar spine. See also May 2018 Memorandum Decision, p.10. A rating greater than 40 percent under the General Rating Formula is not for further consideration. Id. The Board has also considered whether a rating greater than 40 percent is warranted based upon the IVDS Formula. Id. The Veteran reported missing work to rest due to back pain. However, he has not provided details as to the typical duration, such as hours versus entire the day, of incapacitating episodes. Similarly, the clinical records do not detail the frequency and duration of required bed rest due to incapacitating episodes or confirm that it was medically directed by a treating clinician. Given that the evidence does not reflect incapacitating episodes as defined in the applicable regulation, the evidence does not more nearly approximate the next higher, 60 percent, rating pursuant to the IVDS formula. Caluza, 7 Vet. App. at 506; see also 38 C.F.R. § 4.71a, DC 5242 IVDS Rating Formula, Note 1. The Board also notes that the Veteran was service-connected for right and left lower extremity radiculopathy in a March 2015 rating decision. Neither he, nor his representative have asserted any error in this award or advanced any argument with respect to this issue. Notably, the January 2007 VA examiner reported normal neurological findings for both lower extremities. The additional evidence concerns low back pain symptoms, rather than lower extremity neurological disturbances. In this particular case, further consideration of separate ratings for lower extremity radiculopathy is not warranted. 38 C.F.R. § 4.71a, DC 5242, Note 1. For the foregoing reasons, a 40 percent rating for lumbar spine DJD at the L5-S1 junction with chronic lumbar back pain is warranted from October 3, 2006 since it is the first factually ascertainable evidence of worsening within a year of the November 2006 increased rating claim. 38 C.F.R. § 3.400(o). The preponderance of the evidence reflects the symptoms of the Veteran's lumbar spine disability do not more nearly approximate the criteria for a rating higher than 40 percent. Thus, the benefit of the doubt doctrine is not for application and a rating greater than 40 percent must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3.   This appeal has returned from the Court and the remaining issue in contention is an increased rating for service-connected lumbar spine DJD at the L5-S1 junction with chronic lumbar back pain prior to September 18, 2014. Neither the Veteran, nor his representative, has raised any other issues, nor have any other issues been reasonably raised by the record for this disability. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. D. Simpson, Counsel