Citation Nr: 18146837 Decision Date: 11/01/18 Archive Date: 11/01/18 DOCKET NO. 08-03 620 DATE: November 1, 2018 ORDER A 40 percent rating for lumbosacral strain with disc disease, from June 17, 2008 to November 13, 2010, is granted, subject to the legal authority governing the payment of compensation. FINDING OF FACT 1. For the period from June 17, 2008 to November 13, 2010, the collective medical and lay evidence indicates that, considering functional loss due to pain and other factors during frequent flare-ups, the Veteran’s lumbosacral strain with disc disease appears to have more nearly approximated limitation of forward flexion of the thoracolumbar spine to 30 degrees or less. 2. There is no showing of ankylosis of the thoracolumbar spine, incapacitating episodes of intervertebral disc syndrome (IVDS) during a 12-month period, or any additional, separately ratable neurological manifestations of lumbar spine disability. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran’s favor, the criteria for a 40 percent but no higher rating for the Veteran’s lumbosacral strain with disc disease, for the period from June 17, 2008 to November 13, 2010, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.71a, General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes (DCs) 5235-5243, and Formula for Rating IVDS Based on Incapacitating Episodes (for DC 5243). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from February 1984 to February 2001. This appeal to the Board of Veterans’ Appeals (Board) arose from an April 2007 rating decision in which the RO granted service connection and assigned an initial, 10 percent rating for lumbosacral strain, effective June 29, 2006; granted service connection and assigned an initial 0 percent (noncompensable) rating for hemorrhoids, effective June 29, 2006; granted service connection and assigned an initial 0 percent (noncompensable) rating for right inguinal hernia repair, effective June 29, 2006; and denied service connection for multiple sclerosis. The Board notes that service connection for lumbosacral strain, for hemorrhoids, and for right inguinal repair had been granted in a prior December 1994 rating decision; however, the December 1994 rating decision was vacated when the Veteran’s active military status was reinstated retroactively. In July 2007, the Veteran filed a notice of disagreement (NOD) with the initial disability ratings assigned and the denial of service connection. In a January 2008 rating decision, the RO granted service connection for multiple sclerosis with right lower extremity weakness, which fully resolved the claim for service connection. Notably, the Veteran has not disagreed with the assigned rating or effective date. Also in January 2008, the RO issued a statement of the case (SOC) with respect to the claims for higher initial ratings. Later that month, the Veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans’ Appeals). A September 2008 Decision Review Officer decision assigned the Veteran a higher, 20 percent rating for lumbosacral strain, effective June 17, 2008. In May 2010, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. During the hearing, the Veteran withdrew from appeal his claims for higher initial ratings for hemorrhoids and for residuals of a right inguinal repair. See 38 C.F.R. § 20.204. Also during the hearing, the Veteran submitted additional evidence, along with a waiver of initial RO consideration of the evidence. See 38 C.F.R. §§ 20.800, 20.1304. In July 2010, the Board denied an initial rating in excess of 10 percent for lumbosacral strain, prior to June 17, 2008, and remanded the matter of the Veteran’s entitlement to a rating in excess of 20 percent for the disability from June 17, 2008 for further evidentiary development. After accomplishing further action, in a December 2011 rating decision, the RO assigned a higher, 40 percent rating for lumbosacral strain, effective November 14, 2010. The RO denied a higher rating (as reflected in a December 2010 supplemental SOC (SSOC)), and returned the claim to the Board for further appellate consideration. In June 2017, the Board denied an initial rating greater than 20 percent for lumbosacral strain, from June 17, 2008 to November 13, 2010, and also denied the matter of the Veteran’s entitlement to a rating in excess of 40 percent for the disability from November 14, 2010. The Veteran appealed the June 2017 Board decision denying higher ratings for the lumbar spine disability to the United States Court of Appeals for Veterans Claims (Court). In June 2018, the Court granted a Joint Motion for Remand filed by representatives for both parties, vacating the Board’s decision only as to the issue of an initial rating greater than 20 percent for lumbosacral strain, from June 17, 2008 to November 13, 2010, and remanding the claim to the Board for further proceedings consistent with the Joint Motion. At the outset, the Board determines that all development actions needed to fairly adjudicate the remaining claim herein decided been accomplished. As explained below, the June 2008 VA examination report is the only medical evidence of record pertinent to the period under consideration, and that report includes sufficient testing results pertinent to the include the clinical findings needed to evaluate the disability. Notably, there is no identified evidence for which the Veteran has provided appropriate authorization to obtain, or other existing evidence relevant to the period under consideration outstanding, and neither the Veteran nor his representative has alleged any error or omission in the assistance provided. Hence, the Veteran is not prejudiced by the Board proceeding to a decision on the remaining matter on appeal, at this juncture. Higher Rating Disability evaluations are determined by the application of VA’s Schedule of Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where there is a question as to which of two evaluations shall be applied, a higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. A veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A veteran’s entire history is to be considered when making disability evaluations. 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, where, the question for consideration is entitlement to a higher rating assigned following a grant of service connection, evaluation of the medical evidence since the award to consider the appropriateness of “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). As noted above, the RO assigned staged ratings following the award of service connection for the Veteran’s lumbar spine disability. Only the rating period from June 17, 2008 to November 13, 2010 remains for the Board’s consideration. Although the ratings for the Veteran’s lumbar spine disability have been assigned under Diagnostic Code 5237 (for lumbosacral strain), the criteria for rating all spine disabilities is set forth in a General Rating Formula for Diseases and Injuries of the Spine, pursuant to which limitation of motion and other factors are evaluated. Under the General Rating Formula, for lumbar spine disability, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, or for muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour. A 20 percent rating is warranted for 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 or for muscle spasms 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 for forward flexion of the thoracolumbar spine to 30 degrees or less or for favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is warranted for ankylosis of the entire spine. The noted criteria apply with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease. 38 C.F.R. § 4.71a. 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 combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Each range of motion measurement is to be rounded to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula, Note (2). Alternatively, degenerative disc disease may be rating under the Formula for Rating IVDS Based on Incapacitating Episodes. This formula provides for ratings based upon the frequency and duration of incapacitating episodes during a 12-month period. An “incapacitating episode” is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician. 38 C.F.R. § 4.71a, Note (1). Under this formula, ratings are assignable based on the frequency and duration of incapacitating episodes in a 12-month period: 10 percent for a total duration of at least one week but less than 2 weeks; 20 percent rating a total duration of at least 2 weeks but less than 4 weeks; 40 percent rating a total duration of at least 4 weeks but less than 6 weeks; and 60 percent for a total duration of at least 6 weeks. The Board notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which functional loss due to limited or excess movement, 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; Deluca v. Brown, 8 Vet. App. 202, 204-07 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the United States Court of Appeals for Veterans Claims (Court) held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id., quoting 38 C.F.R. § 4.40. Painful motion with joint or periarticular pathology and unstable joints due to healed injury are recognized as productive of disability entitled to at least a minimal compensable rating for the joint. 38 C.F.R. § 4.59. The application of 38 C.F.R. § 4.59 is not limited to arthritis-related claims. Burton v. Shinseki, 25 Vet. App. 1 (2011). The relevant medical evidence of record for the period from June 17, 2008 to November 13, 201, consists primarily of the report of a single VA examination conducted in June 2008. On examination in June 2008, the Veteran was diagnosed with multi-level lumbar disc disease at L2-3 through L4-5. The examiner indicated that the Veteran’s claims file was reviewed. The Veteran complained of low back pain. He rated the pain as at a level of 2 to 3 on a scale from 0 to 0 and described the pain as constant and dull. He denied any weakness, stiffness, or fatigability. The Veteran reported that he uses a cane for ambulation due to his low back pain. The Veteran further reported that he could perform his occupation as systems engineer, with some limitations. The Veteran claimed that he experienced flare-ups with changes in temperature, and after walking for more than five minutes, or standing more than ten minutes. On examination, range of motion testing revealed forward flexion from 0 to 70 degrees, extension from 0 to 20 degrees, right lateral flexion from 0 to 20 degrees, left lateral flexion from 0 to 20 degrees, right lateral rotation from 0 to 45 degrees, and left later rotation from: 0 to 45 degrees. The Veteran could perform repetitive use testing with at least three repetitions, with no additional loss of function or range of motion after three repetitions. The examiner further noted that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time. However, the examiner also estimated that the Veteran had an additional 60 percent limitation of function of his daily activities during flare ups. He further indicated that the Veteran did not have any incapacitating episode during the 12-month period prior to this examination. The Board finds that the VA examiner’s comments indicates that, during the period under consideration, the Veteran’s lumbosacral strain may have been more disabling during flare-ups than that shown objectively Although range of motion testing range of motion revealed that lumbar spine forward flexion was limited to 70 degrees, the examiner assessed an additional 60 percent limitation of function of his daily activities during flare-ups. Considering this comment in the light most favorable to the Veteran, the Boards finds that the examiner’s description of such further limitation of function during the Veteran’s frequently-described flare-ups approximates forward flexion to 28 degrees. Thus, considering the extent of additional functional loss during flare ups, as prescribed in 38 C.F.R. §§ 4.40 and 4.45, and as interpreted in DeLuca, 8 Vet. App. at 204-7, the Board finds that record raises the question of whether, for the period from June 17, 2008 to November 13, 2010, the functional limitations associated with the lumbar spine disability more nearly approximated forward flexion was limited to 30 degrees or less. Therefore, resolving all reasonable doubt on that question in the Veteran’s favor, the Board finds that, for the period from June 17, 2008 to November 13, 2010, a 40 percent rating for lumbosacral strain with disc disease under the General Rating Formula is warranted. Notably, any higher rating under that formula requires a showing of ankylosis, which was not shown on the June 2008 examination. As 40 percent is the highest rating for limitation of motion of the thoracolumbar spine under the General Rating Formula, absent a showing of ankylosis, no higher rating is assignable based on consideration of functional loss due to pain and other factors under §§ 4.40 and 4.45. See Johnston, 10 Vet. App. at 85. For the same reason, the Veteran is not prejudiced by the absence of clinical findings responsive to Correia v. McDonald, 28 Vet. App. 158 (2016) (holding that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight bearing and non-weight bearing, as appropriate). A rating greater than 40 percent also is not assignable on any other basis. As noted, a higher rating under the Formula for Rating IVDS Based on Incapacitating Episodes requires a showing of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months, which is not shown. Indeed, the June 2008 VA examiner noted that the Veteran did not have any incapacitating episodes of IVDS the prior 12-month period. Also, with respect to neurological manifestations of spine disability pursuant to Note (1) of the General Rating Formula, the Board notes that separate disability ratings have been assigned for radiculopathy of the right lower extremity (femoral nerve) and left lower extremity (sciatic and femoral nerve). The propriety of neither rating is currently before the Board for consideration. There also is no evidence of any separately ratable neurological manifestations of lumbar spine disability other than those for separate ratings already have been assigned. As such, Note 1 provides no basis for assignment of any additional rating(s). Finally, the disability is not otherwise shown to involve any factor(s) warranting evaluation under any other provision(s) of VA’s Rating Schedule. For all the foregoing reasons, the Board finds that the record supports assignment of 40 percent, but no higher, rating for service-connected lumbosacral strain with disk disease for the period from June 17, 2008 to November 13, 2010. In reaching this conclusion, the Board has favorably applied the benefit-of-the-doubt doctrine for the period under consideration, but finds that the preponderance of the evidence is against assignment of any higher or additional rating during this period. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102; Gilbert, 1 Vet. App. at 53-56. As a final point, the Board finds that, in conjunction with the higher rating claim under consideration, the appellant has not raised any other related issues, nor have any other such issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (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). JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Hammad Rasul, Associate Counsel