Citation Nr: 18153749 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 15-01 965 DATE: November 28, 2018 ORDER From November 18, 2012 until June 30, 2014, an initial 40 percent disability rating for intervertebral disc syndrome (IVDS) of the lower spine is granted. REMANDED A rating higher than 40 percent for IVDS, since June 30, 2014, is remanded. FINDINGS OF FACT 1. The evidence is in a state of relative equipoise regarding whether, from November 18, 2012 to June 30, 2014, the Veteran had functional forward flexion beyond 30 degrees in his thoracolumbar spine. 2. The evidence from November 18, 2012 to June 30, 2014 demonstrates that the Veteran’s thoracolumbar spine disability has not involved ankylosis or incapacitating episodes due to IVDS. CONCLUSION OF LAW From November 18, 2012 until June 30, 2014, the criteria have been met for a 40 percent initial rating, but no greater, for IVDS have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5235-43 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service between January and May 2011, and from October 2011 to November 2012. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). Lower spine disability The Veteran claims entitlement to a higher initial rating for service-connected lower back disability. He filed an original service connection claim for low back disability in April 2013. In the March 2014 rating decision on appeal, the RO granted service connection for this disability, and assigned a 10 percent rating effective November 18, 2012, the day following discharge from active duty. See 38 C.F.R. § 3.400 (2018). Later in the appeal period, in a November 2014 rating decision, the RO assigned a 40 percent rating effective June 30, 2014. In the decision below, the Board will consider whether a higher initial disability rating has been warranted at any time from November 18, 2012 until June 30, 2014. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes (DCs). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. “Staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). When assessing the severity of a musculoskeletal disability that is rated based on limitation of motion, VA must consider the extent that a veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when symptoms are most prevalent (“flare-ups”) due to the extent of pain (and painful motion), weakness, premature or excess fatigability, and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. In rating disabilities, VA is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). In such cases, the reasonable doubt doctrine dictates that all symptoms be attributed to the service-connected disability. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). Thoracolumbar spine disability is rated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-43. When rating under the former formula, VA is directed to evaluate orthopedic disability separately with any associated objective neurologic abnormalities under an appropriate diagnostic code, and then combine the separate ratings under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-43, Note (1). A rating under the latter formula is warranted where incapacitating episodes are present due to IVDS. An incapacitating episode is 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). VA should then select whichever formula results in the higher evaluation. Under the General Rating Formula for Diseases and Injuries of the Spine, disability ratings of 10, 20, 40, 50, 60, and 100 percent are authorized for thoracolumbar disability. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-43. As the back disability has been rated as at least 10 percent disabling during the appeal period, the Board will limit its discussion to criteria providing for a higher rating. 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. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine of 30 degrees or less. And 40, 50, and 100 percent ratings are warranted for disorders manifested by ankylosis. Ankylosis is defined as “stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint[.]” Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). The normal combined range of motion of the thoracolumbar spine is 240 degrees – with 90 degrees flexion, 30 degrees extension, 30 degrees each for left and for right lateral flexion, and 30 degrees each for left and for right rotation. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-43, Note (2); Plate V. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 20 percent rating is warranted 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 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. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In this matter, the evidence consists of lay statements from the Veteran, service treatment records (STRs), VA treatment records, and VA compensation examination reports dated in January 2014 and November 2014. This evidence is in a state of relative equipoise regarding whether a 40 percent rating has been warranted throughout the appeal period (i.e., from November 18, 2012). Specifically, it is not clear that forward flexion of the thoracolumbar spine at or beyond 30 degrees has not been functionally impaired by pain. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-43. Neither the STRs, VA treatment records, nor the January 2014 VA report indicated ankylosis, incapacitating episodes, combined range of motion under 120 degrees, guarding or muscle spasm resulting in abnormal gait or abnormal spinal contour, or forward flexion of 30 degrees or less. Rather, the January 2014 VA report notes combined range of motion well beyond 120 degrees with forward flexion of 90 degrees or greater, and with painful motion beginning at 85 degrees flexion. However, other evidence indicates a more severe disability. In statements of record dated in May and June 2014, and in January 2015, the Veteran stated that his disability was far worse than indicated in the January 2014 VA report. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay evidence may be probative on matters involving observable symptomatology such as pain and limited motion). The Veteran stated that his level of disability had differed so greatly from the report that he believes the January 2014 examiner mistook his case for another claimant’s. In support of his theory, he noted the examiner’s finding that he rode bicycles and motorcycles as entirely untrue. His argument is corroborated by VA treatment records which note consistent complaints of back pain throughout the appeal period, and note continual efforts to treat back pain (e.g., epidural steroid injections). His argument is also corroborated by findings in the November 2014 VA examination report, which formed the basis for the increase in rating to 40 percent. This report indicates that in addition to receiving lumbar epidural steroid injections to treat pain, the Veteran had been using oxycodone and hydrocodone. Nevertheless, the examiner noted complaints of pain throughout the day and night. Moreover, the report noted the Veteran’s complaint that he experiences 0 degrees flexion during flare ups. See 38 C.F.R. § 4.59; see also Correia v. McDonald, 28 Vet. App. 158 (2016) and Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (range of motion measurements should consider limitation during flare ups, on active as well as passive range of motion, and in weight-bearing as well as nonweight-bearing situations). On examination, the November 2014 VA examiner noted forward flexion to 40 degrees with objective evidence of painful motion at 10 degrees. After repetitive use testing, the examiner noted 20 degrees forward flexion. The examiner found functional loss exhibited by less movement than normal, weakened movement, incoordination, impaired ability to execute skilled movements smoothly, pain on movement, instability of station, disturbance of locomotion, and interference with sitting, standing and/or weight-bearing. The examiner noted gait altered by muscle spasm, absent reflexes in the right knee and ankle, a positive straight leg raising test on the right side, and noted severe intermittent radicular pain, paresthesias, and numbness into the right leg. The examiner stated that the Veteran [a]rrives ambulatory, gait slightly antalgic favoring right leg. Sits with back guarded and all movements are guarded. Unsteady walking on toes and with tandem gait. Veteran appears to be painful and becomes diaphoretic during ROM. The examiner cited January and November x-ray studies indicating a normal spine, but also cited May 2013 MRI indicating disc protrusion, effaced thecal sac, a possible annular tear, and narrowing on the left and right. In sum, the November 2014 findings, combined with the Veteran’s lay assertions regarding the severity of his disability, indicate more severe disability than noted in the January 2014 VA report. Indeed, this evidence counterbalances the findings noted in the January 2014 VA report. As such, the evidence is in a state of relative equipoise regarding whether the severity recognized effective June 30, 2014, i.e., forward flexion of 30 degrees or less, existed prior to June 30, 2014. The Board cannot therefore find that a preponderance of the evidence demonstrates that, during the appeal period, the Veteran has had effective forward flexion in the thoracolumbar spine beyond 30 degrees. Hence, a 40 percent rating has been warranted since November 18, 2012 from November 18, 2012 until June 30, 2014. From November 18, 2012 until June 30, 2014, the higher ratings of 50, 60, and 100 percent have been unwarranted, however, under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-43. Under the former formula, a higher rating is unwarranted because the evidence shows that the Veteran does not have ankylosis. Under the latter formula, a higher rating is unwarranted because the evidence shows that the Veteran has not experienced incapacitating episodes during the appeal period. Thus, the preponderance of the evidence is against the assignment of a rating higher than 40 percent for lower back disability at any time during the appeal period. See Alemany and Gilbert, both supra. REASONS FOR REMAND 1. A rating higher than 40 percent for IVDS, since June 30, 2014, is remanded. The Veteran’s representative’s October 2018 informal hearing presentation contends that the Veteran’s IVDS has worsened since his last examination in November 2014. Thus, the Board finds a new examination of the service-connected lumbar spine disability is warranted. The matter is REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbar spine disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the lumbar spine disability alone and discuss the effect of the Veteran’s lumbar spine disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). BISWAJIT CHATTERJEE Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Christopher McEntee, Counsel