Citation Nr: 20003216 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 15-31 125 DATE: January 14, 2020 ISSUES 1. Entitlement to a rating in excess of 10 percent prior to September 11, 2019, for intervertebral disc syndrome (IVDS) (previously rated as lumbar facet disease (claimed as degenerative arthritis of the spine and chronic low back pain) (back disability). 2. Entitlement to a rating in excess of 20 percent from September 11, 2019, for the back disability. ORDER Entitlement to a rating in excess of 10 percent prior to September 11, 2019, for the back disability is denied. Entitlement to a rating in excess of 20 percent from September 11, 2019, for the back disability is denied. FINDINGS OF FACT 1. Prior to September 11, 2019, the back disability was manifested by forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees (based on repetitive testing); and, a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; but not by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. 2. From September 11, 2019, the back disability has been manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; but not by favorable ankylosis of the entire thoracolumbar spine; forward flexion of the thoracolumbar spine 30 degrees or less; or incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent prior to September 11, 2019, for the back disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Codes 5235-5243. 2. The criteria for a disability rating in excess of 20 percent from September 11, 2019, for the back disability are not met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Codes 5235-5243. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from August 2001 to June 2004. This case comes before the Board of Veterans’ Appeals (Board) from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The Board notes that in a November 2017 rating decision, a temporary evaluation of 100 percent for the back disability was assigned effective November 7, 2017, based on surgical or other treatment necessitating convalescence. A 10 percent evaluation was assigned effective March 1, 2018. Such period of a temporary 100 percent rating is a full grant of the benefits sought, and therefore, this period is not before the Board on appeal. The Veteran testified before the undersigned during an October 2018 videoconference hearing; a copy of the transcript is of record. When this case was previously before the Board in March 2019, it was remanded for additional evidentiary development. It has since been returned to the Board for further appellate action. The Board finds that there has been substantial compliance with the remand directives, and the case has been properly returned to the Board for further appellate action. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Subsequently in an October 2019 rating decision, a 20 percent evaluation was assigned for the back disability from September 11, 2019. This did not satisfy the Veteran’s appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). Moreover, in the October 2019 rating decision, service connection for right lower extremity radiculopathy, sciatic nerve, (claimed as lumbar radiculopathy) was granted with an evaluation of 20 percent effective September 11, 2019, and service connection for left lower extremity radiculopathy, sciatic nerve, (claimed as lumbar radiculopathy) was granted with an evaluation of 10 percent effective September 11, 2019. As the record reflects no disagreement with either the initial ratings or the effective dates assigned, it appears that the RO's grant of service connection has resolved these matters, and they are no longer before the Board. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that 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 claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Increased Rating Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321(a), 4.1 (2017). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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 (2017). In accordance with 38 C.F.R. §§ 4.1, 4.2 (2017) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the Veteran’s service-connected disability. 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. The Board notes that when it is not possible to separate the effects of a non-service-connected condition from those of a service-connected disorder, reasonable doubt should be resolved in the claimant’s favor with regard to the question of whether certain signs and symptoms can be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); see also 38 C.F.R. § 3.102. Additionally, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b) (West 2014); 38 C.F.R. § 4.3(2017). Thoracolumbar spine disorders other than intervertebral disc syndrome (IVDS) are evaluated under the general rating formula for rating diseases and injuries of the spine (outlined below). 38 C.F.R. § 4.71a, Diagnostic Codes 5235 through 5242. IVDS is evaluated under the general formula for rating diseases and injuries of the spine or under the formula for rating IVDS based on incapacitating episodes (outlined below), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Under the general rating formula for rating diseases and injuries of the spine, 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, the following ratings will apply. A rating of 10 percent is assigned for 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, localized tenderness and guarding not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or 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 evaluation is assigned if forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. There are several notes set out after the diagnostic criteria, which provide the following: First, associated objective neurologic abnormalities are to be rated separately under an appropriate diagnostic code. Second, for purposes of VA compensation, forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion is 0 to 30 degrees, and left and right lateral rotation is 0 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 normal combined range of motion of the thoracolumbar spine is to 240 degrees. Third, in exceptional cases, an examiner may state that, because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in the regulation. Fourth, each range of motion should be rounded to the nearest 5 degrees. Fifth, for VA compensation purposes “unfavorable ankylosis” is a condition in which the entire cervical spine, entire thoracolumbar spine or entire spine is fixed in extension or in flexion and the ankylosis results in one or more of the following: difficulty walking because of the limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin of the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or, neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Thoracolumbar spine disabilities may alternatively be based on IVDS, when applicable. IVDS is evaluated either on the total duration of incapacitating episodes over the last twelve months, or by combining separate evaluations of chronic neurologic and orthopedic manifestations, along with evaluations for all other disabilities, whichever method results in the higher evaluation. Under the rating schedule, an “incapacitating episode” means a period of acute signs and symptoms due to IVDS requiring bed rest prescribed by a physician and treatment by a physician. The “incapacitating episode” method has the following criteria. A rating of 10 percent is assigned for incapacitating episodes having a total duration of at least one week but less than two weeks during the past twelve months. A rating of 20 percent is assigned for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past twelve months. A rating of 40 percent is assigned for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months. A rating of 60 percent is assigned for incapacitating episodes having a total duration of at least six weeks during the past twelve months. 38 C.F.R. § 4.71a, DC 5243. Evaluation Prior to September 11, 2019 Historically, service connection for the back disability was granted in October 2008 with a disability rating of 0 percent assigned effective June 5, 2008. The Veteran filed a claim for an increased rating in August 2012. The Veteran was afforded a VA examination in September 2012 in which he reported worsening back pain. Physical examination showed flexion to 90 degrees; extension was to 20 degrees; right lateral flexion was to 20 degrees; left lateral flexion was to 20 degrees; right lateral rotation was to 30 or greater degrees; left lateral rotation was to 30 or greater degrees; there was no objective evidence of painful motion and no change after repetitive-use testing. There was no functional loss and/or functional impairment. Muscle strength testing was normal, and there was no muscle atrophy. The Veteran was afforded a VA examination in April 2013 in which he reported flare-ups in which he had to skip school twice a month and sitting made his back worse. Physical examination showed flexion to 90 or greater degrees; extension was to 25 degrees; right lateral flexion was to 20 degrees; left lateral flexion was to 25 degrees; right lateral rotation was to 25 degrees; left lateral rotation was to 30 or greater degrees; there was no objective evidence of painful motion. After repetitive-use testing, flexion was to 70 degrees; extension was to 15 degrees; right lateral flexion was to 20 degrees; left lateral flexion was to 25 degrees; right lateral rotation was to 25 degrees; left lateral rotation was to 30 or greater degrees. Functional loss was noted as pain on movement and interference with sitting, standing, and/or weight-bearing. Muscle strength testing was normal, and there was no muscle atrophy. VA treatment records also show reports of back pain, including walking and sitting for long periods of time causing pain. The Veteran was afforded a VA examination in November 2017. The Board notes that the examination report noted that he had surgery two weeks prior, was still in post-operation condition, and had a limited examination. He reported pain daily, worse with any type of physical activity, sitting, bending, lifting, and walking. The examiner was unable to test range of motion. Pain was noted on rest/non-movement. Muscle strength testing was normal, and there was no muscle atrophy. The Veteran testified, and submitted a subsequent statement in October 2018, as to his back symptoms to include an inability to participate in activities due to pain, inability to sit and play with his daughter for any period of time, limited social interaction, severe cramps, weakness, shooting pain, and tingling. In this case, the Board finds that the evidence shows that prior to September 11, 2019, a rating in excess of 10 percent is not warranted, as the preponderance of the evidence shows that the Veteran did not have 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. Evaluation From September 11, 2019 The Veteran was afforded a VA-contracted examination on September 11, 2019, in which IVDS was diagnosed. The Veteran reported daily flare-ups that were severe, lasted 15 minutes, were precipitated by aggravation of the area of the surgery and were alleviated by nothing. Functional loss was noted as an inability to walk, sit, or lay down for long periods of time. Physical examination showed flexion to 50 degrees; extension was to 30 degrees; right lateral flexion was to 25 degrees; left lateral flexion was to 25 degrees; right lateral rotation was to 30 degrees; left lateral rotation was to 30 degrees; these were the results noted for active and passive weight-bearing motion. Pain was noted with repetitive testing in forward flexion to 45 degrees, extension to 20 degrees, right lateral flexion to 20 degrees, and left lateral flexion to 20 degrees. Repetitive testing showed right lateral rotation was to 30 degrees; left lateral rotation was to 30 degrees. Pain was noted to significantly limit functional ability with repeated use over a period of time and during flare-ups with flexion to 40 degrees; extension was to 15 degrees; right lateral flexion was to 20 degrees; left lateral flexion was to 15 degrees; right lateral rotation was to 25 degrees; left lateral rotation was to 25 degrees. Muscle strength testing was normal, and there was no muscle atrophy or ankylosis. The IVDS did not require bed rest during the prior 12 months. There was objective evidence of pain on passive range of motion. In this case, the Board finds that the evidence shows that from September 11, 2019, a rating in excess of 20 percent is not warranted, as the preponderance of the evidence shows that the Veteran does not have favorable ankylosis of the entire thoracolumbar spine; forward flexion of the thoracolumbar spine 30 degrees or less; or incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. Most significantly, the Board finds the objective medical evidence to be probative and credible in determining that the Veteran does not meet the criteria for ratings in excess of those assigned. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In addition to the medical evidence above, the Board has considered the lay evidence in the form of the Veteran’s correspondence. A layperson 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). However, even affording the Veteran full competence and credibility, the statements do not show impairment more closely approximating the criteria for higher ratings. The provisions of 38 C.F.R. § 4.40 and §4.45 concerning functional loss due to pain, fatigue, weakness, or lack of endurance, incoordination, and flare-ups have been considered and applied under 38 C.F.R. § 4.59. DeLuca v. Brown, 6 Vet. App. 321 (1993); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Veteran’s functional loss is contemplated by the ratings assigned. This claim has also been reviewed with consideration of whether staged ratings would be warranted. The evidence shows no distinct periods of time when the Veteran’s symptoms have varied to such an extent that ratings in excess of the currently assigned rating would be warranted. 38 U.S.C. § 5110 (West 2014); 38 C.F.R. § 3.344 (2017); See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). As the preponderance of the evidence is against the assignment of increased ratings, the benefit of the doubt cannot be accorded to the Veteran. Therefore, the claim is denied. 38 U.S.C. § 5107 (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R.M.K., 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.