Citation Nr: 18150491 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-15 170 DATE: November 15, 2018 ORDER For the entire appeal period (exclusive of a period of a temporary total evaluation from June 18, 2015 to September 30, 2015), an evaluation of 40 percent, but not higher, for degenerative disc disease, severe, status-post laminectomy and fusion L5-S1 (“low back disability”) is granted, subject to the criteria governing the payment of monetary benefits. FINDING OF FACT For the entirety of the appeal period, the evidence shows that the degree of impairment from the Veteran’s low back disability more nearly approximates forward flexion of the thoracolumbar spine to 30 degrees or less, but it has not but has not been manifested by ankylosis or incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for a 40 percent rating, but no higher, for the Veteran’s low back disability have been met or approximated for the entire appeal period. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.71a, Diagnostic Code 5242 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 2009 to December 2009, from November 2011 to November 2012, and from March 2013 to June 2014. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, which granted entitlement to service connection for a low back disability and assigned a 10 percent rating from June 17, 2014 to June 18, 2015, a temporary total evaluation from June 18, 2015 to September 30, 2015, and a 20 percent rating from October 1, 2015. The Veteran timely perfected an appeal to the ratings assigned. See December 2015 Notice of Disagreement; March 2016 Statement of the Case; April 2016 VA Form 9. In a March 2017 administrative decision, the RO informed the Veteran that it was reducing his VA compensation due to receipt of drill pay during fiscal year 2015. In March 2017, the Veteran filed a timely notice of disagreement (NOD) with that decision. When a NOD has been filed with regard to an issue, and a statement of the case (SOC) has not been issued, the appropriate Board action is to remand the issue to the agency of original jurisdiction (AOJ) for issuance of an SOC. Manlincon v. West, 12 Vet. App. 238 (1999). However, a review of the claims file shows that the RO has acknowledged receipt of the NOD and is actively developing that claim. See March 2017 DRO Process Explanation Letter. As such, this situation is distinguished from Manlincon where a NOD had not been recognized. Accordingly, the Board declines to exercise jurisdiction over those claims for Manlincon purposes as no such action on the part of the Board is warranted at this time. Increased Rating The Veteran seeks higher ratings for his low back disability. Specifically, he contends that his low back disability is more severe than reflected by his current disability ratings. A. Legal Criteria Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. 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 the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). The criteria for rating disabilities of the spine are listed under Diagnostic Codes 5235 to 5243. All service-connected spine disabilities are evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), unless the spinal disability is rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Incapacitating Episodes Rating Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Diagnostic Code 5243 provides that intervertebral disc syndrome can be evaluated under either the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in a higher rating when all disabilities are combined. 38 C.F.R. § 4.71a. Under the general rating formula, with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 10 percent evaluation is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; or the combined range of motion of the thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees; or 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 assigned 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. A 40 percent rating is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating, and unfavorable ankylosis of the entire spine warrants a 100 percent rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. There are several notes set out after the diagnostic criteria, which provide the following: first, associated objective neurologic abnormalities are to be rated separately under an appropriate diagnostic code. Second, for purposes of VA compensation, 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. Third, in exceptional cases, an examiner may state that, because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in the regulation. Fourth, each range of motion should be rounded to the nearest 5 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Note five provides that for VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine, or the entire spine, is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Note six provides that disabilities of the thoracolumbar and cervical spine segments shall be separately evaluated, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Under the incapacitating episodes rating formula, a 10 percent evaluation is to be assigned for IVDS with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent evaluation is to be assigned for IVDS with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent evaluation is to be assigned for IVDS with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent evaluation is to be assigned for IVDS with incapacitating episodes having a total duration of at least six weeks during the past 12 months. An incapacitating episode is a period of acute signs and symptoms that requires bed rest prescribed by and treatment by a physician. Supplementary Information in the published final regulations states that treatment by a physician would not require a visit to a physician’s office or hospital but would include telephone consultation with a physician. If there are no records of the need for bed rest and treatment, by regulation, there are no incapacitating episodes. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in 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. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the 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. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[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.”). B. Factual Background Turning to the evidence of record, a July 2014 VA treatment record shows that the Veteran reported non-radiating low back pain, especially upon awakening in the morning. He denied bowel/bladder incontinence and saddle anesthesia. On examination, the Veteran’s back had normal curvature. There was tightness and tenderness to palpation of the low back bilaterally. Reflex, sensory, and motor strength testing were normal. An October 2014 VA treatment record shows that the Veteran reported low back pain of a severity of 9-10/10 upon awakening in the morning. He also reported that prolonged sitting aggravates his low back pain. He denied muscle spasms, radiating symptoms down the lower extremities, bowel/bladder incontinence, and saddle anesthesia. Imaging revealed moderately severe to severe degenerative disc disease at L3-L4, moderately severe degenerative disc disease at L5-S1, and mild degenerative disc disease at L4-L5. On examination, the Veteran’s low back had minimal rotation of approximately 10 to 15 degrees bilaterally. Passive movements were deferred due to pain. There was decreased lordosis of the lumbar area and acute and severe spasm of the paraspinals. Another October 2014 VA treatment record shows that the Veteran reported stiff low back pain that had significantly worsened over the past few months. He indicated that his symptoms were worse when waking up in the morning and that he required a cane to get out of bed. On examination, the Veteran had limited active range of motion on flexion and extension secondary to pain. In June 2015, the Veteran underwent anterior lumbar interbody fusion. The Veteran was afforded a VA examination in September 2015. The Veteran reported less pain after his surgery, but he also reported “tightness pain” especially when standing from a supine or seated position that lasts for a couple of hours. He also noted a significant decrease in his ability to forward bend. The Veteran reported left leg symptoms upon initial onset of his low back pain during basic training in 2009; however, he reported that the left leg symptoms had fully resolved. He also reported flare-ups of back pain and functional impairment. Range of motion testing revealed forward flexion to 35 degrees, extension to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 30 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 30 degrees. The examiner indicated that the Veteran’s abnormal range of motion itself contributed to functional loss due to impairment of forward bending. There was pain with forward flexion, right lateral flexion, and right lateral rotation, and the examiner indicated that the pain caused functional loss. There was no evidence of pain with weight bearing. After three repetitions of motion, there was no additional limitation of range of motion or functional loss. The examiner opined that pain and lack of endurance significantly limited functional ability during flare-ups and with repeated use over time. There was no evidence of localized tenderness, muscle spasm, or guarding. Muscle strength, sensation, and reflex testing were normal. A straight leg raising test was normal. The examiner noted that the Veteran did not have radicular pain, any other signs or symptoms due to radiculopathy, or any other neurologic abnormalities or findings related to a thoracolumbar spine condition. The examiner indicated that the Veteran did not have IVDS. X-rays showed severe degenerative disc disease at L3-L4 and status post L5-S1 fusion without hardware complication. The examiner noted that the Veteran’s low back condition would impair him from performing work related duties such as bending, lifting, and prolonged sitting or standing. In a statement attached to his March 2016 substantive appeal, the Veteran reported that his low back condition limited his ability to do physical activity. C. Analysis Having carefully considered the Veteran’s contentions in light of the evidence recorded and the applicable law, the Board finds that the criteria for a rating of 40 percent were met or approximated during the entire rating period. In this regard, VA treatment records from 2014 reflect that the Veteran had limited active range of motion on flexion and extension secondary to pain and that he was unable to perform passive range of motion due to pain. Although exact range of motion values were not recorded, the Board notes that the Veteran reported needing to use a cane when first awakening in the morning. Additionally, imaging revealed moderately severe to severe degenerative disc disease at multiple levels of the Veteran’s thoracolumbar spine. Moreover, during the September 2015 VA examination, which was not conducted during a flare-up, the Veteran’s range of motion was limited to 35 degrees of forward flexion, with pain, and the examiner opined that pain and lack of endurance significantly limited functional ability during flare-ups and with repeated use over time. Based on the foregoing, the evidence of record, including the Veteran’s competent lay statements, reflects that flare-ups, limitation of motion, and functional impairment due to pain and lack of endurance cause the Veteran significant functional impairment. When considering the Veteran’s complaints of low back pain, with episodes of flare-ups of increased pain with physical activities and the objective findings of pain and spasms, with extremely limited range of motion during flare-ups and with repeated use over time, the Board finds that the severity of his lumbar spine symptomatology more closely approximates forward flexion of the thoracolumbar spine 30 degrees or less, especially when functional loss is considered. Thus, with resolution of reasonable doubt in the Veteran’s favor, the Veteran’s low back symptoms more nearly approximate limitation of motion that warrants a 40 percent rating under the criteria for rating spine disabilities. See 38 C.F.R. §§ 4.10, 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995) (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). The Board finds, however, that even acknowledging that the Veteran’s pain, lack of endurance, and limitation of movement may at times result in additional functional loss than that objectively demonstrated, and even when such functional limitations are considered, the preponderance of the evidence is against entitlement to an evaluation in excess of 40 percent. In order to warrant a rating higher than 40 percent under the General Rating Formula, the evidence must show unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. The evidence of record shows that the Veteran’s low back disability is not characterized by ankylosis of the thoracolumbar spine, or of the entire spine, and therefore entitlement to a higher rating under the General Rating Formula is not warranted. In this regard, although the Veteran’s range of motion was extremely limited at times, he maintained some range of motion of his thoracolumbar spine throughout the appeal period. Thus, the Veteran, by definition, does not suffer from ankylosis. See Dorland’s Illustrated Medical Dictionary 94 (31st ed. 2007) (ankylosis is the “immobility and consolidation of a joint due to disease, injury, or surgical procedure”). Additionally, the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59 are not for consideration where the Veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). Thus, no higher rating is available due to functional loss. To qualify for a higher rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the Veteran’s low back disability must result in incapacitating episodes having a total duration of at least 6 weeks during the past twelve months. Here, there is no evidence to support that the Veteran was prescribed bed rest by a physician during this time, and there is no documentary evidence that the Veteran has had incapacitating episodes. VA treatment records reflect that the Veteran complained of low back pain, but he was regularly advised to continue a home exercise plan and his pain was treated conservatively. Additionally, the VA examiner noted that the Veteran did not have incapacitating episodes. Accordingly, a higher rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is not warranted. The Board has also considered whether separate ratings are warranted for any associated neurological abnormalities. Here, the Veteran consistently denied radicular symptoms to the lower extremities, as well as bowel or bladder incontinence. Moreover, sensory, strength, and reflex testing was consistently normal, and a straight leg raising test was negative during the September 2015 VA examination. Additionally, the September 2015 VA examiner indicated that the Veteran did not have radiculopathy or any other neurologic abnormalities related to his low back disability. Accordingly, the Board finds that separate ratings are not warranted for any objective neurological symptoms. The Board concludes that the objective medical evidence and the Veteran’s statements regarding his symptomatology show disability that most nearly approximates that which warrants the assignment of a 40 percent disability rating for the entire appeal period (exclusive of a period of a temporary total evaluation from June 18, 2015 to September 30, 2015). See 38 C.F.R. § 4.7. As shown above, and as required by Schafrath, the Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran. The Board finds no provision upon which to assign a greater or separate rating. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Kipper, Associate Counsel