Citation Nr: 18152757 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 16-40 651A DATE: November 27, 2018 ORDER For the period prior to March 15, 2017, an increased rating of 40 percent for degenerative disc disease of the lumbosacral spine, with scoliosis and spondylosis (lumbar spine disability), is granted. For the period beginning March 15, 2017, an increased rating in excess of 40 percent for a lumbar spine disability is denied. FINDINGS OF FACT 1. Resolving all reasonable doubt in favor of the Veteran, for the period prior to March 15, 2017, contributing factors of functional loss and functional impairment, including less movement than normal, pain on movement, and flare-ups that significantly affect functional impairment, the lumbar spine disability more closely approximates a disability manifested by limitation of motion of forward flexion at 30 degrees or less. 2. For the period beginning March 15, 2017, the Veteran does not have unfavorable ankylosis of the entire lumbar spine; or IVDS with incapacitating episodes having a total duration of at least 6 weeks during a 12-month period. CONCLUSIONS OF LAW 1. For the period prior to March 15, 2017, the criteria for an increased rating of 40 percent for a lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes (DCs) 5243 (2017). 2. For the period beginning March 15, 2017, the criteria for an increased rating in excess of 40 percent for a lumbar spine disability have not been met. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1995 to July 2003. This appeal comes before the Board of Veterans’ Appeals (Board) from a June 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. During the pendency of the appeal, the RO increased the rating disability for the lumbar spine from 20 percent to 40 percent, effective March 15, 2017. Increased Rating Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. Part 4 (2017). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7 (2017). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). The Veteran’s entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1 (2017); 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. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). In evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss, including due to weakness and pain, affecting the normal working movements of the body in terms of excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40 (2017). With respect to disabilities of the joints, it must be considered whether there is less movement or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement, as well as swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45 (2017). These provisions thus require a determination of whether a higher rating may be assigned based on functional loss of the affected joint on repeated use as a result of the above factors, including during flare-ups of symptoms, beyond any limitation reflected on one-time measurements of range of motion. DeLuca v. Brown, 8 Vet. App. 202, 206 – 07 (1995). However, a higher rating based on functional loss may not exceed the highest rating available under the applicable diagnostic code(s) pertaining to range of motion. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). In determining if a higher rating is warranted on this basis, pain itself does not constitute functional loss. Similarly, painful motion alone does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance, as provided in §§ 4.40 and 4.45. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The intent of the Rating Schedule is to recognize actually painful, unstable or misaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2017). As such, painful motion should be considered to determine whether a higher rating is warranted on such basis, whether or not arthritis is present. See Burton v. Shinseki, 25 Vet. App. 1 (2011) For her service-connected degenerative disability disease of the lumbosacral spine, with scoliosis and spondylosis (lumbar spine disability), the Veteran has been assigned a 20 percent rating for the period prior to March 15, 2017, and a 40 percent rating for the period beginning March 15, 2017, pursuant to 38 C.F.R. § 4.71a, DC 5243 (2017). A lumbar spine disability may be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, whichever of the two methods results in the higher rating. 38 C.F.R. § 4.71a, DC 5243. Under the General Rating Formula, a 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, DC 5243. Following the rating criteria, Note 1 provides: Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Under the Formula for Rating IVDS Based on Incapacitating Episodes, a 40 percent rating 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 rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. In her April 2015 notice of disagreement, the Veteran explained that due to the severity of her back pain, she was absent from work on average of three to four days per month, and that she began to telework. Subsequently, in her August 2016 Board appeal, she further explained that subsequently, she undertook a new position at a new agency, where she was no longer allowed to telework, and that she was unable to sleep on countless nights and missed numerous days at work, due to pain. 1. Period Prior to March 15, 2017 As noted above, for the period prior to March 15, 2017, the Veteran has been assigned a 20 percent rating for his lumbar spine disability, under DC 5243. The medical evidence of record, including private treatment records and VA examinations, have not shown any evidence of favorable ankylosis of the lumbar spine. However, the medical evidence of record reflects that the symptoms of her lumbar spine disability were primarily characteristic of severe, chronic back pain, with manifestations of tenderness on palpation, muscle spasm, as well as an antalgic/abnormal gait. According to December 2013, January 2014, and February 2014 private treatment notes, forward flexion of the lumbar spine was measured at 80 degrees; and extension was measured at 35 degrees, with no restrictions on flexion, extension and lateral bending. The examiner identified pain as a contributing factor, described as active painful range of motion. In March 2014, the Veteran underwent a VA examination of the lumbar spine. The VA examination report provides more details on the nature and severity of the Veteran’s lumbar spine disability for the period prior to March 15, 2017. At the examination, the Veteran reported having flare-ups, in which she explained that they occur approximately 7 – 10 days in a month, with the severity of her pain rated at 10, on a scale of 1 to 10. She explained that during flare-ups, she has no movement of the back and that she is unable to sit to use the rest room. On initial range of motion testing, forward flexion was 40 degrees, with objective evidence of painful motion beginning at 40 degrees; extension ended at 15 degrees; with objective evidence of painful motion beginning at 15 degrees. On range of motion after repetitive testing, which the Veteran was able to perform, post-test forward flexion and post-test extension rendered the same results as initial range of motion testing, ending at 40 degrees and 15 degrees, respectively. Further, the VA examination report reflects that the Veteran had functional loss and/or functional impairment of the lumbar spine, in which the contributing factors were less movement than normal and pain on movement. The Veteran also had localized tenderness or pain to palpation of the joints, which was described as mild tenderness over the left paraspinal muscles at L-4 Level. The VA examiner remarked that the Veteran has difficulty driving and sleeping due to pain. He further explained that even though she can walk approximately a mile, she is unable to run or do sit ups; she is unable to undertake light house work; and that she is unable to lift objects heavier than 20 pounds. Furthermore, in addition to reiterating the frequency and severity of the flare-ups, as described by the Veteran and noted above, the VA examiner further explained that during flare-ups, the Veteran has complete loss of motion; she cannot sit to use the restroom; and that if she bends her back repeatedly, on the next day, she will have a flare up of her condition. In support of her increased rating claim, the Veteran submitted a private medical opinion from a treating physician assistant, M.A. In this July 2014 opinion, M.A. explained that she treats the Veteran for chronic pain related to lumbar degenerative disc disease, lumbar neuritis and lumbar spondylosis conditions, which, she opined, cause substantial limitations in activities of daily living. She further explained that the Veteran requires work modifications that consist of limited sitting, standing, or walking for prolonged periods of time; and that because of the medications she requires to treat her pain, her ability to drive is limited and therefore, requires certain accommodations, including and not limited to, restrictions from prolonged walking or standing and driving while using pain medications. In her April 2015 notice of disagreement, in support of an increased rating claim, the Veteran asserted that her March 2014 VA examination was performed incorrectly and did not take into account the severe level of pain that she was in prior to the exam; the pain escalated during the examination; and that she was in tears at the end of the examination due to the manipulations the examination performed. In this regard, the Board finds that in March 2014, the VA examiner failed to undertake an assessment of critical factors that would provide a clearer, detailed assessment of the severity of the Veteran’s lumbar spine, for rating purposes. Specifically, the VA examiner failed to undertake an assessment or a testing of the joints for pain on both active and passive motion, in weight-bearing and non-weight bearing, pursuant to Correia v. McDonald, 28 Vet. App. 158, 168 (2017). Additionally, the VA examiner failed to either undertake an assessment and/or indicate whether pain, weakness, fatigability, or incoordination significantly limited the functional ability with repeated use over time, and/or on flare-ups. See DeLuca, Supra. There is no indication, however, that those defects could be cured by virtue of a retrospective examination. As such, based on all the probative evidence of record, the Board concludes that a disability rating of 40 percent, but no higher, is warranted. As noted above, with forward flexion, at maximum, measured at 40 degrees, contributing factors of functional loss and/or functional impairment of the Veteran’s lumbar spine include less movement than normal and pain on movement. Treatment records reflect piercing, sharp, shooting and stabbing pain, with symptoms aggravated by ascending stairs, bending, changing positions, coughing descending stairs, extension, flexion, running, sitting sneezing and walking; with precipitating factors, including sitting, driving, bending, and activities. See e.g. February 2014 Private Treatment Note. Additionally, as noted above, at her VA examination, the Veteran reported having flare-ups that occurred approximately 7 – 10 days in a month, with the severity of pain rated at 10 out of a scale of 0 – 10. When these flare-ups occurred, she had a complete loss of motion of the back, an inability to sit to use the rest room. Thus, all these symptoms manifestly reflect evidence of flare-ups that significantly affect functional impairment, thereby affecting the normal working movement of the lumbar spine, with respect to excursion, strength, speed, endurance or coordination. Flare-ups were not of sufficient frequency, however, to approximate a disability manifested by unfavorable ankylosis of the entire thoracolumbar spine. In addition, during this period, while the disability resulted in painful movement, the contemporaneous treatment records do not show “bed rest” prescribed by a physician – a required component when rating the disability on the basis of Incapacitating Episodes under 38 C.F.R. § 4.71. Finally, no neurologic abnormalities were found on examination; as such a separate compensable rating for such is not for application. Period Beginning March 15, 2017 As noted above, for the period beginning March 15, 2017, the Veteran has been assigned a 40 percent rating for his lumbar spine disability, under DC 5243. The medical evidence of record, including treatment records and a March 2017 VA examination on the lumbar spine, suggest that the Veteran’s lumbar spine condition resulted in significant impairment. For example, at her VA examination, she reported more frequent flare-ups, which she indicated were weekly; and which she described as increased pain, which require her to take extra pain medication, with an attempt to rest, while the pain subsides. She reported having functional lose or functional impairment, which she described an inability to bend and lift much. On range of motion testing, forward flexion of the lumbar spine was further limited to 10 degrees. Nonetheless, despite medical evidence of increased severity, a higher rating is not warranted for the period beginning March 15, 2017. As noted above, under the General Rating Formula for Diseases and Injuries of the Spine, an increased rating of 50 percent is warranted for unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, DC 5243. Thus, as the evidence of record has not shown that the Veteran has unfavorable ankylosis of the entire lumbar spine, for the period beginning March 15, 2017, a rating in excess of 40 percent is not warranted. In addition, the record does not show prescribed bed rest; hence, a higher rating on the basis of Incapacitating Episodes is not for application. Finally, the Board has also considered whether separate, additional ratings are applicable to the Veteran’s lumbar spine disability, at any time during the appellate period. However, in a March 2017 decision, service connection was granted for right and left lower extremity radiculopathy and initial 10 percent disability ratings were assigned, effective March 15, 2017. Although the Veteran was notified of her appellate rights, she did not appeal that determination. Thus, summarily, for the period prior to March 15, 2017, an increased rating of 40 percent is granted; but for the period beginning March 15, 2017, an increased rating in excess of 40 percent must be denied. Matthew Tenner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD V-N. Pratt, Associate Counsel