Citation Nr: 20021892 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 08-01 320 DATE: March 27, 2020 ORDER Entitlement to a disability rating of 40 percent, but no higher, from July 18, 2014, to March 6, 2015, for a lumbar strain is granted. Entitlement to a disability rating in excess of 40 percent since March 7, 2015, for a lumbar strain is denied. REMANDED Entitlement to service connection for bilateral lower extremity radiculopathy is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to April 1, 2015 is remanded. FINDINGS OF FACT 1. During the period from July 18, 2014 to March 6, 2015, forward flexion of the lumbar spine more nearly approximated limitation of forward flexion to 30 degrees or less. 2. During the entire period on appeal, the Veteran's lumbar strain did not manifest with unfavorable ankylosis of the entire thoracolumbar spine; unfavorable ankylosis of the entire spine; or prescribed bed rest for a period of six weeks or more during a 12-month period. CONCLUSIONS OF LAW 1. Entitlement to a disability rating of 40 percent, but no higher, for service-connected lumbar strain from July 18, 2014 to March 6, 2015, were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5237. 2. From March 7, 2015, the criteria for entitlement to a disability rating in excess of 40 percent for service-connected lumbar strain were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1967 to December 1969. The Veteran died in December 2017. The appellant is the Veteran’s surviving spouse. A letter granting substitution was provided in August 2019. This matter is on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified before a Veterans Law Judge (VLJ) during a June 2014 hearing; a transcript is associated with the claims file. The Board previously remanded the above-referenced issues in March 2014, December 2014, and August 2015. In February 2017, the Board, in pertinent part, remanded the issues of entitlement to a disability rating in excess of 20 percent from July 18, 2014, to March 6, 2015, for a lumbar strain; and a rating in excess of 40 percent, thereafter. The Board also remanded the issues of entitlement to service connection for bilateral radiculopathy and entitlement to a TDIU prior to April 1, 2015. In February 2020, the appellant was informed that the VLJ who conducted the Veteran’s hearing was no longer available to participate in the appeal. The appellant was given an opportunity to appear at a hearing before a VLJ who would decide the claim. However, in March 2020 the appellant submitted a statement that she wished for the case to be decided based upon the evidence of record and that she did not desire to attend a hearing before the Board; as such, the Board will proceed with adjudication of the appeal. Increased rating Disability ratings are based on the average impairment of earning capacity resulting from a disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. An evaluation of the level of disability present includes consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. 1. Increased rating for lumbar strain July 18, 2014 to March 6, 2015 The Veteran contended that between July 18, 2014 and March 6, 2015, his lumbosacral spine disability symptoms were more severe than contemplated by a 20 percent rating. After review of the evidence of record, the Board finds that a rating of 40 percent, but no higher, was warranted during this period for the Veteran's lumbosacral spine disability. Spine disabilities are rated under the General Rating Formula for Diseases and Injuries of the Spine unless evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Intervertebral disc syndrome is to be rated under whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 20 percent disability evaluation is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months; a 40 percent disability evaluation 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 disability evaluation is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. Note (1): For purposes of evaluations under DC 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. Under the General Rating Formula for Diseases and Injuries of the Spine, 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 spasms 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 disability rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent disability rating. Unfavorable ankylosis of the entire spine warrants a 100 percent disability rating. 38 C.F.R. § 4.71a, Diagnostic Codes 5239. Note (1) provides: Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2) provides: (See also Plate V.) For VA compensation purposes, normal flexion of the thoracolumbar is zero to 90 degrees, extension is 0 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. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The United States Court of Appeals for Veterans Claims (Court) also has issued the opinion of Correia v. McDonald, 28 Vet. App. 158 (2016), which clarifies additional requirements that VA examiners should address when assessing musculoskeletal disabilities, holding specifically, that the joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. For the period between July 18, 2014 and March 6, 2015, medical evidence does not report limitation of forward flexion to 30 degrees or less; however, there were no examinations conducted during this period. The Board notes that on the March 7, 2015 examination the Veteran’s lumbar spine flexion was limited to 30 degrees or less. Additionally, the Veteran reported increasing difficulty with his lumbar spine disability during his June 2014 VA hearing. The Board is cognizant of the fact that an “effective date should not be assigned mechanically based on the date of diagnosis; rather, all of the facts should be examined to determine the date that [the Veteran’s disability] first manifested.” Swain v. McDonald, 27 Vet. App. 219, 224 (2015). In this case, the Veteran’s credible reports of increased increasing difficulty with his lumbar spine disability corresponds with the subsequent evidence received at the March 2015 VA examination. Since it is not factually ascertainable that the Veteran’s increased symptoms became more severe within the period between July 2014 and March 2015, the Board has assigned the increased evaluation throughout the period on appeal. As such, the Board finds that a 40 percent rating is warranted from July 18, 2014. The Board, however, finds that a rating in excess of 40 percent is not warranted throughout this period. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation would not result in symptoms more nearly approximating unfavorable ankylosis of the entire spine. None of the medical evidence of record during this period indicated a condition that was manifested by either favorable or unfavorable ankylosis of the lumbar spine. The Board notes that subsequent to this period the Veteran was noted to have some range of motion of forward flexion of the lumbar spine during the March 2015 VA examination. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 40 percent for lumbar strain. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Increased rating for lumbar strain since March 6, 2015 The appellant contends that the Veteran was entitled to a higher rating during this period. Unfortunately, the Board finds that the preponderance of the evidence is against a rating in excess of 40 percent for lumbar strain. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation would not result in symptoms more nearly approximating unfavorable ankylosis of the entire spine. The Veteran was provided VA examination in March 2015. This examination documented flexion to 30 degrees or less with no diagnosis of intervertebral disc syndrome associated with his back injury. The examiner also did not indicate that the Veteran had been prescribed bed rest in excess of six weeks during a 12-month period due to his service-connected condition. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 40 percent for lumbar strain. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding the issue of entitlement to service connection for bilateral lower extremity radiculopathy; as such, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). The 2017 Board remand requested an opinion whether the Veteran has had a diagnosis of a bilateral lower extremity disorder at any point since filing his claim for service connection. It also requested opinions regarding the etiology of the Veteran’s radiculopathy if such a diagnosis was provided. Although the Veteran died prior to his scheduled examinations, medical opinions could have been obtained based upon the evidence of record. Finally, as a decision on the remanded issue of entitlement to service connection for bilateral lower extremity radiculopathy could significantly impact a decision on the issue of entitlement to a TDIU prior to April 1, 2015, the issues are found to be inextricably intertwined. Accordingly, the issue of entitlement to a TDIU prior to April 1, 2015 is required. The matters are REMANDED for the following action: 1. Obtain an opinion from an appropriate clinician regarding whether the Veteran had a diagnosis of a bilateral lower extremity radiculopathy since filing his February 2007 claim for an increased rating for a lumbar spine disability. If not, the examiner must address the conflicting medical evidence in VA treatment records and VA examinations regarding the Veteran’s complaints of bilateral lower extremity numbness and tingling. If the examiner finds the Veteran had a diagnosis of a bilateral lower extremity radiculopathy, the examiner should opine whether it is at least as likely as not (a 50 percent probability or greater) that any radiculopathy was related to an in-service injury, event, or disease. If not, the examiner must opine whether the condition at least as likely as not was due to, or has been permanently aggravated by, a service-connected disability including any medications prescribed to treat any service-connected disability. A complete and adequate rationale is required for any and all opinions expressed. Patrick M. Johnson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph Montanye, 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.