Citation Nr: 18151952 Decision Date: 11/21/18 Archive Date: 11/20/18 DOCKET NO. 16-18 098 DATE: November 21, 2018 ORDER Entitlement to a disability rating in excess of 20 percent for service-connected lumbar strain, residual of injury, with intervertebral disc syndrome (lumbar spine disability) for the period prior to March 7, 2017 is denied. Entitlement to a disability rating in excess of 40 percent for service-connected lumbar spine disability for the period beginning March 7, 2017 is denied. FINDINGS OF FACT 1. For the period prior to March 7, 2017, the Veteran’s service-connected lumbar spine disability was manifested by pain and forward flexion greater than 30 degrees. It was not manifested by ankylosis, or incapacitating episodes requiring bed rest prescribed by a physician. 2. For the period beginning March 7, 2017, the Veteran’s service-connected lumbar spine disability was manifested by pain and forward flexion to 30 degrees or less. It was not manifested by ankylosis, or incapacitating episodes requiring bed rest prescribed by a physician of more than 2 weeks duration over a 12-month period. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for service-connected lumbar spine disability for the period of time prior to March 3, 2017, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5237, 5243. 2. The criteria for a disability rating in excess of 40 percent for the service-connected lumbar spine disability for the period beginning March 3, 2017 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5237, 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1979 to March 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is associated with the electronic claims file. The case was previously before the Board in June 2017, when it was remanded for examination of the Veteran; the requested development has been completed. Increased Ratings for Lumbar Spine Disability Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Consistent with the facts found, separate ratings can be assigned for separate periods of time, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); see also, Hart v. Mansfield, 21 Vet. App. 505 (2007). Regulations specify that disabilities of the spine should be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (Spinal Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. When intervertebral disc syndrome (IVDS) is present, it is to be evaluated under the Spinal Formula unless it is more favorable to rate under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). Ratings under the Spinal Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. As relevant to the thoracolumbar spine, the Spinal Formula provides for a 10 percent disability rating when forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, when combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees, when there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or when there is vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is assigned with unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Spinal Formula. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is to 90 degrees and the normal combined range of motion is 240 degrees. Id., Note (2). Associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. Id., Note (1). Alternatively, the IVDS Formula provides for rating based on the total duration of incapacitating episodes. 38 C.F.R. § 4.71a, IVDS Formula. Incapacitating episodes are defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id., Note (1). A 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks. Higher ratings are available with incapacitating episodes of greater duration during a 12-month period. In this case, the Veteran does have a diagnosis is degenerative disc disease of the lumbar spine; however, IVDS with incapacitating episodes of the requisite duration to support a higher disability rating is not shown at any period covered by the appeal. Service connection for the residuals of a low back injury has been in effect since January 1991 at a 20 percent disability rating. In December 2011, the Veteran filed his claim for an increased disability rating. During the pendency of the appeal an increased rating of 40 percent was granted effective March 7, 2017. At that time separate 10 percent disability ratings of 10 percent for each leg were assigned for radiculopathy of both the right and left lower extremities also effective March 7, 2017. The Veteran has not disagreed with the disability ratings assigned for his radiculopathy and those ratings will not be further discussed. During the appeal period the Veteran underwent VA examinations in April 2012, November 2015, and April 2018. At the June 2012 Compensation and Pension examination range of motion testing was performed and showed, at worst, forward flexion to 70 degrees. There was no evidence of ankylosis of the spine, and no evidence of incapacitating episode resulting from IVDS. During examination the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. The Veteran denied having flare-ups that impacted function of the spine. The examiner performed neurological testing and found that radiculopathy was not present. At the November 2015 Compensation and Pension examination range of motion testing was performed and showed, at worst, forward flexion to 80 degrees. There was no evidence of ankylosis of the spine, and no evidence of incapacitating episode resulting from IVDS. During examination the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. The Veteran reported flare-ups of pain but no functional loss or functional impairment of the back. The examiner performed neurological testing and found that radiculopathy was not present, nor was any other neurological abnormality related to the lower back disability. Private and VA treatment records dated throughout the appeal period reveal that the Veteran was treated for complaints of chronic back pain with prescription medication. While records generally indicate reports of pain and decreased range of motion, most do not contain actual documented ranges of motion to apply to the rating criteria. However, a VA orthopedic surgery note dated March 7, 2017 indicates that the Veteran’s forward flexion was limited to 10 degrees. Based on the range of forward flexion documented on this treatment report, a disability rating of 40 percent was assigned effective March 7, 2017. At the April 2018 Compensation and Pension examination range of motion testing was performed and showed, at worst, forward flexion to 10 degrees, which was consistent with that found on the prior treatment record. There was still no evidence of ankylosis of the spine or of incapacitating episode resulting from IVDS. While the Veteran reported flare-ups of pain during changes in weather, he was not able to describe a change in range of motion during flare-ups or after repetitive use over time; thus, the examiner was unable to estimate if there was additional limitation of motion under these conditions. No report suggests that the specific findings on examination, in terms of range of motion which would change to the degree required for a higher rating during a flare-up, after repetitive use, due to pain, or with weight bearing, nor does any other evidence of record to include the Veteran’s lay statements. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). While the Veteran has essentially stated that he has pain and reduced motion in his spine, he has not described a range of motion which would warrant a higher rating for any period of time in question. Absent indication by the Veteran or other evidence suggesting additional limitation of motion during flare-up or after repetitive use over time there is no reason to suspect range of motion is limited any more than reflected during examination and additional inquiry in this regard is unnecessary. Notably, the Veteran denied flare-ups at the April 2012 examination and only described pain during flare-ups, as opposed to additional limitation of motion, at the subsequent examinations. Additional information was sought by the examiner in April 2018, but the Veteran was unable to describe any range of motion changes during flare-ups. Simply put, the Veteran has not provided enough information for examiners to offer an estimate of range of motion during flare-ups or after repetitive use over time, and the Veteran’s own statements during examinations do not suggest additional limitation of motion under these conditions. Given the above, higher disability ratings are not warranted based on limitation of motion for any period covered by this appeal. Ankylosis of the spine is not shown by the medical evidence or alleged by the Veteran. As noted above, incapacitating episodes of IVDS of the requisite duration for a higher rating are not shown. Separate neurological ratings other than those already assigned are not warranted at any point. Neurological examination was performed at the 2012 and 2015 examinations and the examiners found no radiculopathy or other neurological abnormality related to the service-connected lower back disability. The 2018 examiner found no neurological abnormalities related to the service-connected lower back disability other than the now service-connected lower extremity radiculopathy. The evidence is against a finding that the Veteran meets the criteria for the assignment of a disability rating in excess of 20 percent for the period prior to March 7, 2017, and 40 percent thereafter, for his service-connected degenerative lumbar spine disability. Accordingly, disability ratings in excess of those assigned for the periods in question are denied. 38 C.F.R. §§ 4.3, 4.7. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (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). Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Havelka, Counsel