Citation Nr: 19192579 Decision Date: 12/10/19 Archive Date: 12/10/19 DOCKET NO. 13-02 490 DATE: December 10, 2019 ORDER Entitlement to a disability rating in excess of 10 percent for degenerative disc disease of the thoracolumbar spine at least for period the prior to November 21, 2012, is denied. Entitlement to a disability rating of 20 percent, but no higher, for degenerative disc disease of the thoracolumbar spine at least for the period from November 21, 2012, is granted. FINDINGS OF FACT 1. For the period on appeal prior to November 21, 2012, the Veteran’s low back disability, diagnosed and referenced herein as degenerative disc disease (DDD) of the thoracolumbar (lumbar) spine, manifested with forward flexion of the lumbar spine greater than 30 degrees but not greater than 60 degrees, a combined range of motion of the thoracolumbar spine greater than 170 degrees but not greater than 335 degrees, and was productive of no more than muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour. 2. Resolving the benefit of the doubt to the Veteran, for the period on appeal beginning on November 21, 2012 and thereafter, the Veteran’s DDD of the lumbar spine manifested through limited forward flexion of 50 degrees, with a combined range of motion of 120 degrees. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased rating for degenerative disc disease of the lumbar spine, rated 10 percent prior to November 21, 2012, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 2. Throughout the period on appeal from November 21, 2012 and thereafter, the criteria for a rating of 20 percent, but no higher, for DDD of the lumbar spine have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a; DC 5242. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from June 1977 to October 1981 and in the U.S. Army from January 2005 to November 2005; he also had a period of active duty for training from January 18, 2003, to February 1, 2003. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2012 rating decision of the Department of Veterans Affairs (VA) Regional office (RO) in Sioux Falls, South Dakota. A notice of disagreement (NOD) was filed in March 2013 with a statement of the case (SOC) issued that same month. The Veteran perfected an appeal in May 2013, and supplemental statements of the case (SSOC) concerning this claim were issued in May and December 2013. This matter was certified to the Board in May 2014 and the Veteran appeared before the undersigned Veterans’ Law Judge (VLJ) for a hearing in August 2014. A transcript of that proceeding has been associated with the Veteran’s claims file. Pursuant to testimony received at that proceeding concerning the worsening of the Veteran’s condition, in the Board’s March 2015 decision, this claim was remanded to the AOJ for the administration of a new VA examination. See March 2015, Board Decision (denying service connection for a traumatic brain injury, neck injury residuals, and abdomen injury residuals and dismissing the issue of service connection for chest injury residuals, in addition to denying an increased evaluation in excess of 10 percent for degenerative joint disease of the left elbow and declining to refer the claim for extra-schedular consideration - rated separately from the Veteran’s disability of left elbow ulnar neuropathy. That portion of the March 2015 Board decision regarding the left elbow degenerative joint disease was appealed to the United State Court of Appeals for Veteran Claims (CAVC), which affirmed the Board’s ruling. See June 2016, CAVC Memorandum Decision (also citing Pederson v, McDonald, 27 Vet. App. 276, 281-86 (2015) (en banc) (the Court declining to review the merits of an issue not argued on appeal and dismissing that portion of the appeal)). Upon completion of the Board’s March 2015 remand directives, an additional SSOC was issued in February 2017, and this matter was returned to the Board. See February 2017, SSOC; see also February 2017, Due Process Waiver. In a January 2018, the undersigned VLJ remanded this claim once more due to an incomplete VA examination. The Veteran was afforded additional examinations in February 2018 and 2019, resulting in the issuance of another SSOC in April 2019, and the subsequent return of this claim to the Board for consideration. Through the re-adjudication of this claim by the RO, the Veteran was granted an increase in his disability rating for DDD of the lumbar spine to 20 percent, effective February 25, 2019. See April 2019, SSOC. 1. Entitlement to an increased rating in excess of 10 percent prior to September 25, 2019, for degenerative disc disease of the lumbar spine. 2. Entitlement to an increased rating in excess of 20 percent from September 25, 2019, for degenerative disc disease of the lumbar spine. Although the Veteran was granted an increase to his disability rating in April 2019, because the maximum benefit was not granted during the pendency of the appeal period, the issue of entitlement to a higher evaluation remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran argues that he is entitled to a rating in excess of 10 percent prior to February 25, 2019 as well as a rating in excess of 20 percent thereafter. See June 2019, Appellate Brief. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. 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 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). To appropriately assign a rating for the Veteran’s degenerative disc disease (DDD) of the lumbar spine, the Board must consider functional loss due pain, weakness, excess fatigability, incoordination, and those factors which are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Diagnostic Code 5242 evaluates lumbar spine disabilities with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine. A 10 percent rating is warranted when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or 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 body contour; or vertebral body fracture with loss of 50 percent or more of height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or 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 contour such as scoliosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. For VA compensation purposes, 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 combined normal range of motion of the thoracolumbar spine is 240 degrees. Id., General Rating Formula, Note 2. In the instant case, the Veteran’s DDD of the lumbar spine has been assigned a 10 percent rating from November 29, 2007 to February 24, 2019, and 20 percent thereafter pursuant to 38 C.F.R. § 4.71a, DC 5242. Here, the record evidence reflects that the Veteran filed his claim for an increased rating in November of 2010. See November 2010, Veteran’s Supplemental Claim. The November 2012 rating decision currently on appeal continued the Veteran’s DDD of the lumbar spine disability at a 10 percent rating based upon a November 2012 VA examination. The November 2012 examination showed that the Veteran had been diagnosed with DDD of the lumbar spine, with reports of pain and flare-ups related to the condition. Range of motion testing revealed a forward flexion of 80 degrees without pain, extension of 25 degrees without pain, and bilateral lateral flexion and bilateral rotation of 30 degrees each without pain. There was no additional loss of motion or pain upon repetition. The examiner found that there was no functional loss for the Veteran’s lumbar spine, and also reported that the Veteran did not experience localized tenderness, guarding, or spasms. Strength, sensory, and reflex testing was all normal, and the Veteran was able to sit comfortably for thirty minutes. He was also able to stand on heels and toes without pain, bend forward to remove socks and shoes, and pull his knee to his chest without pain. Additionally, the examiner noted that arthritis was documented by X-ray and that the Veteran would on occasion utilize a cane. See November 2012, VA Examination. The additional evidence of record for the period on appeal prior to the date of the November 2012 VA examination includes other VA treatment notes, indicating that the Veteran received various treatments for lower back pain, including lidocaine patches for a short period of time which then transitioned to a lidocaine ointment. See May 2010, VA Treatment Records. VA treatment records also show that the Veteran was prescribed oral pain medications to alleviate his lower back symptoms. Id. In addition, private treatment notes from 2010 display that the Veteran received epidural injections for relief of his DDD of the lumbar spine symptoms. See 2010, Private Treatment Records. None of the evidence of record for the time period prior to November 21, 2012 indicates that the Veteran experienced any functional loss due to pain, fatigue, weakness, or lack of endurance, incoordination, or flare-ups of the disability. See 2010, Private Treatment Records; May 2010, VA Treatment Records; November 2012, VA Examination; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). As previously addressed by the Board, the November 2012 VA examination was adequate for evaluating the status of the Veteran’s condition at that time. See March 2015, BVA Decision. The Board finds that the probative evidence of record demonstrates that the Veteran’s DDD of the lumbar spine warrants a 10 percent disability rating for the period on appeal on or before the date of the November 20, 2012 VA Examination. The symptomatology presented throughout the record depicts that the Veteran’s condition manifested with forward flexion greater than 60 degrees but not greater than 85 degrees and a combined range of motion of greater than 120 degrees but not greater than 235 degrees. Accordingly, a disability rating of 10 percent is warranted on and before November 20, 2012. The Veteran’s disability did not warrant a 20 percent rating as it did not manifest through forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or 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 contour such as scoliosis. See November 2012, VA Examination. As the preponderance of the evidence is against a finding that the Veteran’s disability more nearly approximates the criteria for a higher rating prior on and before November 20, 2012, a higher rating is not warranted. 38 C.F.R. §§ 4.3, 4.7 (2016). Although the November 2012 VA examination was adequate to assess the status of the Veteran’s disability at that time, the Veteran testified that after the completion of that examination, his disability began to worsen. See August 2014, Hearing Transcript. The Veteran was afforded an additional VA examination in February 2017, however, as previously explained by the Board, that examination was incomplete. See January 2018, Board Decision. VA conducted another examination of the Veteran in February 2018. The results of that examination show that the Veteran reported a worsening of his condition, with flare-ups described by the Veteran as causing locking of his back with rotation of his spine. The Veteran also reported at the time of the examination that he is unable to do any heavy lifting or endure prolonged sitting, standing, or walking. Range of motion testing revealed a forward flexion of 80 degrees, extension of 25 degrees, and left lateral flexion and right lateral rotation of 25 degrees, with right lateral flexion to 15 degrees and left lateral rotation to 30 degrees. The abnormal range of motion was also noted as contributing to the Veteran’s functional loss due to pain limiting the motion, with pain exhibited in forward flexion, extension, and right lateral flexion and rotation. There was no evidence of pain with weight bearing but there was evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the right upper lumbar. The Veteran was able to complete repetitive use testing which did not show additional loss of function or range of motion after three repetitions. Although the Veteran was not examined immediately after repetitive use over time, the examiner noted that pain causing functional loss limited the Veteran’s range of motion to the following: forward flexion of 70 degrees, extension of 20 degrees, right lateral flexion of 10 degrees, left lateral flexion of 25 degrees, right lateral rotation of 20 degrees, and left lateral rotation of 30 degrees. There were no findings of muscle spasms or guarding of the lumbar spine, or muscle atrophy. However, despite the Veteran’s reporting of increased pain during flare-ups, the examiner failed to provide an opinion concerning whether the flare-ups caused additional functional loss. In addition, the examiner failed to provide the rationale for why a complete examination could not be undertaken while the Veteran was experiencing a flare-up of his disability. Rather, the examiner reported that they were unable to opine whether pain, weakness, fatigability or incoordination significantly limited functional ability with flare-ups without resorting to mere speculation. Sharp v. Shulkin, 29 Vet. App. 26 (2017). For these reasons, the Board finds that the February 2018 examination is inadequate to extent that the VA examiner was unable to assess the Veteran’s true disability picture during flares. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Sharp, 29 Vet. App. at 33-35; Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). An additional VA Examination was administered in February 2019. Notably, this examination was conducted while the Veteran was experiencing a flare-up of his condition. See February 2019, VA Examination. The examiner diagnosed the Veteran with lumbosacral strain, degenerative arthritis of the spine, spondylolisthesis, and intervertebral disc syndrome. The February 2019 VA examination showed range of motion testing with the following results: forward flexion of 50 degrees, extension of 15 degrees, right lateral flexion of 15 degrees, left lateral flexion of 15 degrees, right lateral rotation of 15 degrees, and left lateral rotation of 15 degrees. Range of motion testing after repetitive use indicated additional limitation of movement, with forward flexion of 40 degrees and all others limited to 10 degrees. It was also noted that pain caused functional loss with repeated use over time and that pain significantly limits functional ability during periods of flare ups. No ankylosis, muscle atrophy, guarding or spasms of the lumbar spine were noted, and strength testing revealed normal strength for each area examined. The functional impact of the Veteran’s condition results in interference with prolonged sitting, standing, walking, climbing, heavy lifting, and running. In analyzing the Veteran’s current claim, another factor to consider is the degree of pain experienced by the claimant. 38 C.F.R. §§ 4.40, 4.45, 4.59. In addition to the VA examination report outlined above, which the Board finds to be very probative in this case, the Veteran’s statements about his pain, pain on use, additional restrictions during flare-ups, and reduced range of motion are lay assertions which may serve to support his claim by supporting the occurrence of lay-observable events or the presence of symptoms of disability subject to lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that a layperson may comment on lay-observable symptoms). As documented in the VA examinations discussed above, and as testified to during his hearing before the Board, the Veteran has described his subjective complaints of pain, and objective medical evidence has indicated that the Veteran has routinely sought treatment for his lumbar spine disability. See VA Treatment Records; 2010, Private Treatment Records; February 2019, VA Examination. Examining the evidence summarized above, and giving due consideration to the provisions under 38 C.F.R. §§ 4.7, 4.40, and 4.45, the medical evidence of record shows that the Veterans DDD of the lumbar spine symptomatology of pain, pain on motion and limitation of motion due to pain with use and/or with flare-ups meets the schedular criteria for an evaluation of 20 percent for the lumbar spine disability and has done so, presumably, throughout the period on appeal beginning on November 21, 2012 and thereafter. The pain and functional limitations caused by the orthopedic manifestations of the Veteran’s disability are contemplated in the evaluation for the symptomatology of the thoracolumbar spine that is represented by the 20 percent rating currently in effect. While a retrospective opinion may be necessary in some instances where the record lacks medical evidence for the relevant time period, here, such an opinion would only call for further speculation of what the Veteran has experienced over the course of the past seven years. Such action is unnecessary where the record contains an adequate opinion upon which the Board may render a decision. See Chotta v. Peake, 22 Vet. App. 80 (2008) (retrospective medical opinions are permitted in determining disability ratings); Vigil v. Peake, 22 Vet. App. 63 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the relevant time period). The Board finds that the February 2019 VA examination provides a probative record upon which the Board may base its holding, along with the lay assertions reported therein, the Veteran’s testimony provided during his August 2014 hearing before the Board, and the additional private and VA treatment records associated with the Veteran’s claims files. Having found that the February 2017 and 2018 examinations are of diminished probative value, as discussed above, the Board finds more probative and will apply the findings of the February 2019 examination to the period beginning on the date following the November 20, 2012 VA examination. Although the specific date of the increase in severity of the Veteran’s DDD of the lumbar spine warranting a 20 percent rating is not ascertainable from the record, in applying the benefit of the doubt doctrine to the issue presented here, the Board finds that the Veteran’s increased symptomatology began after the day following the November 20, 2012 VA examination, as was reported by the Veteran. See 38 U.S.C. § 5107 (b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Accordingly, an increased rating to 20 percent, but no greater, is granted for the period beginning on November 21, 2012. As to a rating in excess of 20 percent for any period on appeal, the Board finds that such a rating is not supported by the evidence of record. A higher evaluation of 30 percent is not warranted for DDD of the lumbar spine during this period because the evidence of record does not show forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242. A higher evaluation of 40 percent is not warranted for DDD of the lumbar spine during this period because the evidence of record does not show forward flexion of the thoracolumbar spine limited to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. Id. The Board has also considered whether a higher rating could be assigned under the intervertebral disc syndrome (IVDS) formula based on incapacitating episodes. However, to date, the Veteran has not been shown to have incapacitating episodes of IVDS requiring bed rest prescribed by a physician and treatment by a physician of a total duration of at least two weeks but less than four weeks during a 12-month period. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1); see also February 2019, VA Examination. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Sutherell, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.