Citation Nr: 18150213 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 11-02 552 DATE: November 14, 2018 ORDER Entitlement to a rating of 20 percent, but no higher, for lumbar degenerative disc disease from April 21, 2008 to January 26, 2011 is granted subject to the laws and regulations governing the award of monetary benefits. REMANDED Entitlement to a rating in excess of 20 percent for lumbar degenerative disc disease since Jan. 27, 2011, is remanded. FINDING OF FACT 1. At no time during the appellate term was the claimant’s lumbar degenerative disc disease manifested by incapacitating episodes. 2. Between April 21, 2008 and January 26, 2011, the Veteran’s lumbar degenerative disc disease was not manifested by forward thoracolumbar flexion less than 61 degrees, or by a combined range of thoracolumbar motion less than 121 degrees, or by muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. 3. Between April 21, 2008 and January 26, 2011, self-reported flare-ups of the Veteran’s lumbar degenerative disc disease limited his range of motion by an additional 30 percent. CONCLUSION OF LAW The criteria for a 20 percent rating, but no higher, for lumbar degenerative disc disease were met for the period between April 21, 2008 and January 26, 2011. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1973 to June 1976 and from October 1976 to October 1996. The Veteran testified at an October 2015 videoconference hearing before the undersigned. A transcript of those proceedings is associated with the record. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. The RO in Detroit, Michigan, certified the appeal to the Board. In March 2017, the Board denied the benefits sought on appeal. The Veteran appealed to the United States Court of Appeals for Veterans Claims. In December 2017 the Court granted a joint motion for remand. Disability evaluations are determined by comparing a veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119, 126 127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In determining the appropriate rating for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Factors of joint disability include increased or limited motion, weakened movement, excess fatigability, incoordination, and painful movement, including during flare-ups and after repeated use. DeLuca v. Brown, 8 Vet. App. 202, 206-08 (1995); 38 C.F.R. § 4.45. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40. “Pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system.” Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Pain in a particular joint 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., 38 C.F.R. § 4.40. Under 38 C.F.R. § 4.59, painful joints are entitled to at least the minimum compensable rating for the joint. Under VA’s Rating Schedule spinal disabilities are evaluated under the General Rating Formula for Diseases and Injuries of the Spine or, if the Veteran is service connected for an intervertebral disc syndrome, under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Note (6). The Veteran’s lumbar degenerative disc disease was previously evaluated under Diagnostic Code 5242 (degenerative arthritis of the spine). It is currently evaluated under Diagnostic Code 5243 (intervertebral disc syndrome). Irrespective of the Diagnostic Code used, the appellant’s disorder is governed by the general rating formula for diseases or injuries of the spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. That general formula specifies that the criteria and ratings apply with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area affected by residuals or injury or disease. Id. Under the general rating formula, a 20 percent rating is warranted for 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. A 40 percent rating is warranted if forward flexion of the thoracolumbar spine is 30 degrees or less; or when there is favorable ankylosis of the entire thoracolumbar spine. Id. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 20 percent rating is warranted when there are incapacitating episodes having a total duration of at least two weeks, but less than four weeks during the past 12 months. a 40 percent rating is assigned if there were incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 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. 38 C.F.R. § 4.71a, The Spine, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). From April 21, 2008 to January 26, 2011. The Veteran seeks entitlement to a higher a disability rating for lumbar degenerative disc disease in excess of 10 percent for the period prior to January 27, 2011. After reviewing the evidence of record the Board finds that a rating of 20 percent, but no more, is warranted for the Veteran’s disorder during this term. During a May 2008 examination no objective abnormalities of thoracic sacrospinalis were noted. The Veteran’s range of motion was recorded as being 90 degrees on flexion, 30 degrees on extension, and 20 degrees on left lateral flexion, with all remaining measures normal. There was no additional limitation with repetitive motion. The appellant walked with a normal gait, and there was no evidence of scoliosis, or reversed lordosis. The impression was “mild degenerative arthritic changes with degenerative disc disease.” During the spinal examination in June 2010, the examiner noted the following ranges of motion: 65 degrees of flexion, 24 degrees of extension, left lateral flexion of 30 degrees, left lateral rotation of 17 degrees, right lateral flexion of 30 degrees, and right lateral rotation of 40 degrees. There was no objective evidence of pain on active motion, nor any additional limitation with repetitive motion. Degenerative disc disease was confirmed with X-Ray images. The appellant walked with a normal gait, and there was no evidence of kyphosis, scoliosis, or reversed lordosis. The Veteran did report two to three flare-ups a week which the physician estimated would cause approximately 30 percent less movement. These flare ups lasted four to five hours and were caused by changes in weather or heavy lifting. An additional 30 percent limitation would equate to flexion limited to 45.5 degrees. Such a limitation is arguably consistent with a 20 percent rating, but no greater. While “[p]ain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system,” Mitchell; and while the general formula specifies that the criteria and ratings apply with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area affected by residuals or injury or disease, 38 C.F.R. § 4.71a; the Board will resolve reasonable doubt and assign a 20 percent rating for the period from April 21, 2008 to January 26, 2011. The preponderance of the evidence, however, is against finding that the Veteran’s lumbar degenerative disc disease approximated the criteria for a rating higher than 20 percent at any time prior to January 27, 2011. Even when considering the impact of flare-ups, at no time was forward thoracolumbar flexion demonstrated to 40 degrees or less, and at no time was favorable ankylosis of the entire thoracolumbar spine demonstrated. As such, entitlement to a rating greater than 20 percent prior to January 26, 2011 is denied. REASONS FOR REMAND Since January 27, 2011 Regarding the rating warranted since January 27, 2011, the Veteran has alleged that he suffers from flare-ups of lumbar spine symptoms which are worse than currently rated. The March 2018 examiner noted these complaints, but failed to provide an estimate of the functional loss during flare-ups based on information in the medical records and elicited from the Veteran. As such, the claim must be remanded for a new VA examination that adequately addresses the Veteran’s reported flare-ups. See Sharp v. Shulkin, No. 16-1385, 2017 U.S. App. Vet. Claims LEXIS 1266 (Vet. App. Sept. 6, 2017). The matter is REMANDED for the following action: 1. Assist the Veteran in associating with the claims folder updated treatment records. If any such records cannot be located, specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. Then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Thereafter, schedule the Veteran for a VA examination to ascertain the current severity and manifestations of his lumbar degenerative disc disease. The Veteran’s VBMS and Virtual VA/Legacy files must be made available to the examiner for review in connection with the examination. The examiner must provide findings as to the range of thoracolumbar motion, including flexion and extension. The examiner must specifically include the nature of any active motion, passive motion, and motion with weight bearing and nonweight bearing. The examiner must indicate whether range of motion is additionally limited due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. In doing so, the examiner must opine whether pain could significantly limit functional ability during flare-ups or when the lumbar spine is used repeatedly over a period of time. Such determinations should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. If the examination does not take place while the appellant is suffering from a flare up, then the examiner must glean information from the Veteran addressing the severity, frequency, and duration of any flare-ups. Then the examiner must estimate “per the veteran” the extent to which flare-ups affect functional impairment. A complete and fully explanatory rationale must be provided for any opinion offered. If any opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joseph Montanye, Associate Counsel