Citation Nr: 18154395 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 16-15 721A DATE: November 29, 2018 ORDER The claim of entitlement to an effective date earlier than September 20, 2012, for the award of service connection for a lumbar spine disability is denied. The claim of entitlement to an initial disability rating in excess of 10 percent for a lumbar spine disability, prior to November 26, 2014, is denied. A disability rating of 20 percent for a lumbar spine disability, but no more, from November 26, 2014, to June 18, 2018, is granted. The claim of entitlement to a disability rating in excess of 10 percent for a lumbar spine disability, from June 19, 2018, is denied. FINDINGS OF FACT 1. The record does not contain a formal or informal claim for service connection for a lumbar spine disability prior to September 20, 2013. 2. Prior to November 26, 2014, the Veteran’s lumbar spine disability was not manifested by limitation of forward flexion to 60 degrees or less, a combined range of motion of 120 degrees or less, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, or functional impairment equivalent to such limitations. 3. From November 26, 2014, to June 18, 2018, the Veteran’s lumbar spine disability was manifested by limitation of forward flexion to 60 degrees or less. 4. From June 19, 2018, the Veteran’s lumbar spine disability has not been manifested by limitation of forward flexion to 60 degrees or less, a combined range of motion of 120 degrees or less, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, or functional impairment equivalent to such limitations. 5. During the entire period on appeal, the Veteran never demonstrated forward flexion limited to 30 degrees or less or ankylosis of the spine. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date earlier than September 20, 2012, for the grant of service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 5101, 5107, 5110; 38 C.F.R. §S 3.155, 3.400. 2. Prior to November 26, 2014, the criteria for an initial disability rating in excess of a 10 percent rating were not met for the Veteran’s lumbar spine disability. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5237, 5242, 5243. 3. From November 26, 2014, to June 18, 2018, the criteria for a disability rating of 20 percent, but no higher, were met for the Veteran’s lumbar spine disability. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5237, 5242, 5243. 4. From June 19, 2018, the criteria for an initial disability rating in excess of a 10 percent rating for the Veteran’s lumbar spine disability have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Codes 5237, 5242, 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Air Force from May 2004 to August 2004, from August 2005 to November 2005, from January 2007 to June 2007, from May 2008 to November 2008, and from January 2010 to March 2010. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to a total disability rating based on individual unemployability (TDIU) will be considered to have been raised by the record as “part and parcel” of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453–54 (2009). In this case, the June 2018 VA examination report indicates that the Veteran is currently employed, and there is no evidence that employment is not substantially gainful. As such, entitlement to a TDIU has not been raised. Earlier Effective Date The Veteran contends he is entitled to an effective date earlier than September 20, 2012, for the grant of service connection for a lumbar spine disability. However, the Board notes that the Veteran is in receipt of the earliest possible effective date given the facts of his case, and therefore, his claim must be denied. In this regard, the assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of the receipt of the claim or the date entitlement arose, whichever is later. For disability compensation based on direct service connection, the effective date of the award of service connection will be the day following separation from active service or the date entitlement arose if a claim is received within one year after separation from service; otherwise, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. 3.400(b)(2). Under VA’s Fully Developed Claim Program, an effective date may be assigned up to one year prior to the date of claim under certain circumstances. See PL 112-154, Section 506; VBA Manual M21-1, III.i.3.B.4.a. Determining the Appropriate Effective Date for a Grant of Benefits Under the FDC Program. Here, the Veteran’s claim for service connection for a lumbar spine disability was received on September 20, 2013. Service connection for a lumbar spine disability was granted in a July 2014 rating decision, effective as of September 20, 2012, one year prior to the date of the claim. First, the Board finds that there is no document of record that can be construed as a formal or informal claim for entitlement to service connection for a lumbar spine disability received prior to September 20, 2013. In addition, the Veteran separated from active duty in March 2010. As VA did not receive that claim within one year after separation from service, an effective date of the day following separation from active duty cannot be assigned. Furthermore, the Veteran does not assert that he filed a formal or informal claim prior to that date. Finally, the Board notes that the assignment of an effective date one year prior to the date of the claim is the statutory limit for a retroactive effective date. Thus, an effective date prior to September 20, 2012, cannot be assigned as a matter of law for the award of service connection for a lumbar spine disability. Therefore, the claim is denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994).   Increased Rating The Veteran contends that he is entitled to an increased rating for his lumbar spine disability. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The Schedule is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When two evaluations are potentially applicable, VA will assign the higher evaluation when the disability more nearly approximates the criteria for the higher rating. 38 C.F.R. § 4.7. VA will resolve reasonable doubt as to the degree of disability in favor of the Veteran. 38 C.F.R. § 4.1. If the evidence for and against a claim is in equipoise, the claim will be granted. 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. In accordance with 38 C.F.R. §§ 4.1, 4.2 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities at issue. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability. Each disability is viewed in relation to its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). The Board notes that 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 concern. 38 C.F.R. §§ 4.1, 4.2 (2016); see also Francisco v. Brown, 7 Vet. App. 55 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), however, the United States Court of Appeals for Veterans Claims (Court) held that “staged ratings” are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. Section 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). VA must consider all favorable lay evidence of record. 38 U.S.C. § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all of the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran contends that he is entitled to an increased rating for his lumbar spine disability. Disabilities of the spine are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine (General Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. The Veteran’s lumbar spine disability has been evaluated as 10 percent disabling under Diagnostic Code 5242, pertaining to degenerative arthritis of the spine. Under the General Rating Formula for Diseases and Injuries of the Spine (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, the following ratings will apply. An evaluation of 10 percent is warranted if forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or if there is a vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, Diagnostic Code 5235-5243. A 20 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is 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 evaluation is warranted if forward flexion of the thoracolumbar spine is limited to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. Id. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating, and unfavorable ankylosis of the entire spine warrants a 100 percent rating. Id. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees; extension is 0 to 30 degrees; left and right lateral flexion and rotation are 0 to 30 degrees. Any associated objective neurologic abnormalities are evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Formula, Note 1. Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, surgical procedure. Lewis v. Derwinski, 3 Vet. App. 259 (1992) (memorandum decision); Nix v. Brown, 4 Vet. App. 462, 465 (1993); and Shipwash v. Brown, 8 Vet. App. 218, 221 (1995). Ankylosis has also been 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). Intervertebral disc syndrome (preoperatively or postoperatively) is evaluated either 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, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes warrants a maximum 60 percent rating when rating based on incapacitating episodes, and such is assigned when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 40 percent rating is assigned for incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months. Note 1 provides that for the purposes of evaluations under Diagnostic Code 5243, 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. “Chronic orthopedic and neurological manifestations” means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. 38 C.F.R. § 4.71a, Diagnostic Code 5243. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. 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. 38 C.F.R. § 4.40. Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Id.; see also 38 C.F.R. § 4.59 (discussing facial expressions such as wincing, muscle spasm, crepitation, etc.). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. Excess fatigability and incoordination should be taken into account in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45. Consideration of a higher rating for functional loss, to include during flare ups, due to these factors is warranted for Diagnostic Codes predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Pain itself does not constitute functional loss, and painful motion does not constitute limited motion for the purposes of rating under Diagnostic Codes pertaining to limitation of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pain indeed must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance in order to constitute functional loss. Id. On VA examination in May 2014, the examiner noted a diagnosis of degenerative arthritis of the spine. Range of motion testing revealed flexion to 90 degrees or greater; extension to 20 degrees; right lateral flexion to 20 degrees; left lateral flexion to 30 degrees or greater; and, right and left lateral rotation to 30 degrees or greater, bilaterally. Combined range of motion for the lumbar spine was 220 degrees. There was objective evidence of pain on active range of motion, but there was no additional loss of range of motion after three repetitions. However, the examiner noted functional loss after repetitive range of motion testing, indicating less movement than normal, pain on movement, and interference with sitting, standing, and/or weight-bearing. The examiner further noted localized tenderness or pain to palpation for joints or soft tissue of the thoracolumbar spine. There was evidence of muscle spasms, but they did not result in an abnormal gait or abnormal spinal contour. There was no evidence of guarding. There was no evidence of ankylosis of the lumbar spine. The Veteran reported experiencing flare-ups twice a month, indicating increased pain in the low back that lasted from three to five days. He also indicated a worsening of pain with sitting for over 30 minutes and bending. The examiner noted that there was no anticipated change over time in range of motion from flares, pain, or repetitive motion. A January 2014 VA treatment record shows that the Veteran demonstrated full range of motion for the lumbar spine in all planes. VA treatment records dated February 2014 and March 2014 show that the Veteran’s range of motion for flexion was within normal limits. An April 2014 VA treatment record shows that the Veteran demonstrated full range of motion for the lumbar spine in all planes. Review of the Veteran’s VA medical treatment records reveals that the Veteran was afforded a physical therapy consult on November 26, 2014. The Veteran reported chronic low back pain. He indicated increased low back pain over the last two years that seemed to have been progressively worsening. The Veteran described his back pain as “achey” and “stiff” at rest. The pain was made worse with prolonged sitting or standing, and the pain was exacerbated by all active/isolated motions of the back. He indicated that the low back pain was often manageable; however, every few weeks the pain seemed to flare-up, lasting for a few days and resolving with stretching and resting. He stated that, for the last few weeks, his back had remained very stiff and sore, and was not improving. On physical examination, the examiner noted increased lumbar lordosis. Range of motion testing revealed that he was able to achieve 50 percent of normal forward flexion, which would equate to no less than half of normal or 45 degrees. An April 2016 VA Disability Benefits Questionnaire (DBQ) for the back shows that the Veteran complained of increased pain in his back. He asserted pain and flare-ups. On examination, the examiner noted that the Veteran had tenderness and discomfort in the lumbar region. The examiner further noted that the Veteran had guarding or muscle spasms, but there was no evidence of abnormal gait or abnormal spinal contour. The examiner also noted decrease in range of motion; however, no objective range of motion results measured in degrees was noted on the report. A June 2017 VA treatment record shows that the Veteran continued to demonstrate significantly limited and painful trunk range of motion. The Veteran reported that he experienced flare-ups inconsistently. He further reported that, during the past year while in nursing school, he only had one flare-up; however, since finishing school, he had two flare-ups in the past two months. A July 2017 VA treatment record shows that the Veteran reported that his back was doing well and that he was back to baseline. The examiner noted that the Veteran was improving in range of motion, lumbar segmental mobility, and pain level since his last visit. Most recently, the Veteran underwent a VA examination for his lumbar spine disability on June 19, 2018. The Veteran reported flare-ups of back pain, indicating that he generally had to move a certain way with flexing his knees to bend at the waist. Range of motion testing revealed flexion to 65 degrees; extension to 30 degrees; right and left lateral flexion to 15 degrees, bilaterally; and, right and left lateral rotation to 20 degrees, bilaterally. Combined range of motion for the lumbar spine was 165 degrees. Pain was noted on examination. Passive range of motion testing could not be performed. There were no additional limitations after three repetitions. There was no guarding or muscle spasm. There was localized tenderness to palpation. There was no evidence of ankylosis of the lumbar spine. There was evidence of IVDS. The examiner found that the Veteran did not have any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. For the period prior to November 26, 2014, the above evidence shows that the Veteran has normal forward flexion. In addition, there was no evidence of record of additional limitation of range of motion upon repetitive motion testing. There is no evidence of ankylosis, such that a 50 or 100 percent evaluation would be warranted. The evidence does not show that the Veteran has ever experienced forward flexion of the thoracolumbar spine that was limited to 60 degrees or less, nor has the evidence indicated the Veteran’s combined range of motion has ever been reduced to 120 degrees or less. Moreover, there was no evidence of guarding or spasm. Therefore, neither a 20 nor 40 percent evaluation is warranted for the period prior to November 26, 2014. For the period on appeal from November 26, 2014, to June 18, 2018, the evidence shows that the Veteran demonstrated decreased range of motion, as his forward flexion was limited to 45 degrees. During the latter portion of this period, the evidence shows that the Veteran’s range of motion improved. During the VA examination on June 19, 2018, the Veteran demonstrated forward flexion to 65 degrees. Therefore, the Board finds that a 20 percent evaluation is in order, effective from November 26, 2014, to June 18, 2018. For the period on appeal from June 19, 2018, the Veteran’s lumbar spine has not had limitation of forward flexion to 60 degrees or less or a combined range of motion of 120 degrees or less. There has been no finding of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. Functional impairment of his lumbar spine from all factors has not been actually or nearly equivalent to such limitations. Additionally, for the period on appeal from June 19, 2018, while the Veteran has been diagnosed with IVDS, he has not experienced incapacitating episodes requiring prescribed bed rest and treatment by a physician. As such, a higher evaluation is not warranted under Diagnostic Code 5243. Therefore, his lumbar spine disability did not approximate or meet the criteria for an evaluation in excess of 10 percent during any portion of the period beginning on and after June 19, 2018. In this case, the Board finds the examinations adequate for rating purposes and that higher disability ratings are not warranted based on limitation of motion even when considering the functional effects of pain to include during flare ups and after repetitive use. At the examinations, the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed by the examiner. At the May 2014 VA examination, the Veteran reported worsening of pain with sitting for over 30 minutes and bending. The examiner noted that there was no anticipated change over time in range of motion from flares, pain, or repetitive motion. At the June 2018 VA examination, the Veteran reported the effect of flare-ups on his lumbar spine was difficulty bending. While given the opportunity and specifically asked about flare-ups and their effect, he did not describe additional limitation of motion and certainly not limitation to the degree necessary for higher ratings. Of note, the description of difficulty bending did not include a report of a reduced amount of bending; that is, a reduced range of motion. Likewise, the examination reports do not suggest that the findings on examination, in terms of range of motion, 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. The Board notes that there is no reason to suspect that passive range of motion would be any less than that of active motion absent a finding of such on examination or report of such by the Veteran, neither of which is present in this case. As such, further examination or opinion is unnecessary and higher disability ratings predicated on limitation of motion are not warranted. The Board has also considered whether a separate compensable rating for neurological impairment is warranted at any time during the rating period in question, other than that already granted radiculopathy of the bilateral lower extremities associated with the lumbar spine disability by the RO. As the medical evidence does not show such impairment, the Board finds that a separate evaluation for associated neurological impairment, other than the service-connected bilateral lower extremity radiculopathy, is not warranted at this time. In sum, the findings set forth above most closely approximate those necessary for a 10 percent rating for the lumbar spine disability prior to November 26, 2014, for a 20 percent rating from November 26, 2014, to June 18, 2018, and for a 10 percent rating from June 19, 2018. The findings needed for the next higher evaluation are not currently demonstrated in any of these periods on appeal. Thus, the Board has assigned a staged rating. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Y. MacDonald, Associate Counsel