Citation Nr: 20042764 Decision Date: 06/24/20 Archive Date: 06/24/20 DOCKET NO. 16-15 402A DATE: June 24, 2020 ORDER Entitlement to a rating in excess of 20 percent (excepting a period of temporary total disability due to convalescence from January 30, 2014 to February 28, 2014) for a lumbar spine disability is denied. FINDING OF FACT During the period on appeal, excepting a period of convalescence following laminectomy performed January 30, 2014 for which he has been granted a temporary total disability rating, the Veteran’s lumbar spine disability has not been manifested by forward flexion limited to 30 degrees or less, favorable or unfavorable ankylosis of the thoracolumbar spine, or intravertebral disc syndrome (IVDS) with incapacitating episodes requiring bed rest prescribed by a physician. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 20 percent (excepting a period of temporary total disability due to convalescence under 38 C.F.R. § 4.30 from January 30, 2014 to February 28, 2014) for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1956 to August 1982. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision. This matter was previously before the Board in December 2017 when it was remanded for additional development. The Board notes that the issue of entitlement to a compensable rating for a scar status post laminectomy was also remanded so the agency of original jurisdiction (AOJ) could render a statement of the case (SOC). A January 2020 SOC was issued addressing this claim, and no substantive appeal has been received since that time; therefore, the appeal of the denial of entitlement to a compensable rating for the Veteran’s scar is not before the Board at this time. Entitlement to a rating in excess of 20 percent for a lumbar spine disability, excluding a period of temporary 100 percent rating based on surgery and convalescence from January 30, 2014 to February 28, 2014, The Veteran filed the claim for increase on appeal in April 2014 and contends that he is entitled to a higher rating because his lumbar spine disability has been more severe than characterized by his initial assessment following his January 2014 laminectomy. The Veteran’s lumbar spine disability is currently rated under Diagnostic Code 5293 for intervertebral disc syndrome (IVDS). See 38 C.F.R. § 4.71a (2002). The Board notes that there were a number of changes in the criteria for rating musculoskeletal disabilities under 38 C.F.R. § 4.71a after the Veteran’s initial rating but prior to the current period on appeal. The new criteria for rating IVDS became effective September 23, 2002. See 67 Fed. Reg. 54345 (Aug. 22, 2002). Further, additional regulatory changes for rating all other back disorders became effective September 26, 2003, but these did not change the way IVDS was rated, except for renumbering Diagnostic Code 5293 as Diagnostic Code 5243. See 68 Fed. Reg. 51454-56 (Aug. 27, 2003). Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings 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. Id. at Note 1. 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 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 to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The effective date for an increased rating is the earliest date on which an increase in disability is factually ascertainable if a claim is received within one year of that date; otherwise, the date of the receipt of the claim, in this case April 2014. 38 C.F.R. § 3.400(o)(2). As the evidence shows the Veteran had surgery on his back on January 30, 2014 followed by a brief period of convalescence, the Veteran has been assigned a period of temporary total disability for convalescence from January 30, 2014 to February 28, 2014. 38 C.F.R. § 4.30. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for the Veteran’s lumbar spine disability based on incapacitating episodes. Though the evidence of record shows the Veteran has a diagnosis of IVDS, the preponderance of the evidence is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. VA examinations from August 2014 and July 2019 both note that the Veteran has a diagnosis of IVDS but deny the Veteran had been prescribed bed rest as treatment for incapacitating episodes in the 12 months prior to either examination. The Veteran’s medical records from the period on appeal are likewise silent for any prescribed bed rest as treatment for incapacitating episodes related to IVDS. The preponderance of the evidence is also against a rating in excess of 20 percent for the Veteran’s lumbar spine disability under the General Rating Criteria. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain and stiffness, especially after waking in the morning and with prolonged sitting. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by these statements would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A VA examination from August 2014 addressed the Veteran’s condition shortly after his January 2014 spine surgery. As noted in the Board’s December 2017 remand, this examination lacked adequate information regarding limitation in range of motion (ROM), specifically during flares and with repeated use over time; therefore, the examiner’s results are considered only insofar as they provide probative information regarding the Veteran’s functional impairment. The examiner noted that the Veteran’s treatment records regarding his condition shortly before and immediately after his surgery were not available for review at the time of the examination. A supplemental opinion in October 2014 addressed these records when they became available, but the opinion did not provide additional information regarding functional impairment. The examiner noted a history of flares based on the Veteran’s report of a fall in 2013 and exacerbation related to increased spine pain after gardening. Initial range of motion (ROM) testing indicated forward flexion was limited to 70 degrees and extension was limited to 15 degrees, both based on the onset of painful motion. The examiner indicated there was no further impairment with repetitive use testing. The examiner also observed that pain could significantly limit functional ability with repeated use over time, and pain can cause cessation of offending activities. He further indicated no estimation of additional functional loss could be provided based on repetitive use over time or flares without resorting to mere speculation, with no further explanation provided. Overall, the Veteran’s functional impairment was characterized by reduced movement, pain on movement, and interference with sitting, standing, and/or weight-bearing. No signs of radiculopathy or other neurological symptoms were noted, and ankylosis was not found. A July 2019 VA examination following the December 2017 Board remand provided additional information regarding the Veteran’s current lumbar spine disability. The examiner initially indicates that the Veteran reported experiencing reliable worsening of back pain with activities like standing and lifting, but flares are not elicited. Based on this, the examiner indicated flares were not reported. Though this report differs from the August 2014 VA examination report, the Board observes that the report of flares cited in the earlier VA examination was based on the Veteran’s medical history prior to his January 2014 surgery and before the period on appeal. As the July 2019 VA examination report indicates no history of flares was elicited in the Veteran’s reports, the Board does not find this difference in reports between August 2014 and July 2019 to be indicative of an inadequacy in the latter report. The July 2019 examiner measured the Veteran’s initial ROM, finding forward flexion was limited to 80 degrees, extension limited to 10 degrees, bilateral lateral flexion limited to 20 degrees, and bilateral lateral rotation limited to 25 degrees. The examiner indicated no painful motion on the exam, though pain was noted with weight-bearing. No additional functional or range of motion impairment was indicated with observed repetitive use or estimated based on reports of repetitive use over time, though additional pain was reported with repetitive use over time. The Veteran reported impairment of sitting and standing due to pain, as well as occasional use of a walker to aid mobility. The examiner found no signs of radiculopathy or other neurological symptoms, and ankylosis was denied. Prior to his claim for an increased rating, medical records from November 2013 to January 2014 show the Veteran was experiencing lumbar spondylosis and radiculopathy, though it is not factually ascertainable when these symptoms began or the level of functional impairment they caused. Medical records from February and March 2014 containing post-operative follow-up treatment after the Veteran’s January 2014 laminectomy indicate that he experienced an immediate improvement in these symptoms, especially with regard to radiating pain and radiculopathy symptoms in his lower extremities. He reported experiencing continued stiffness and pain in his lower back, especially upon waking and with prolonged sitting. Though there are reports from early 2017 of treatment for pain and degenerative changes in the cervical spine, the Veteran is not currently service-connected for a cervical spine condition. Additional lumbar spine treatment is shown in the Veteran’s VA treatment records as recently as May 2018, but the report from this date does not provide information on functional impairment. The x-ray report indicates severe degenerative disc disease was found at L5-S1, with moderate degenerative changes throughout the lumbar spine. Despite this, the Veteran reported improvement in his pain since earlier visits. Though not specifically addressing his back pain, additional medical records from late 2019 continue to note ongoing back pain, though a December 2019 hospice consult notes no significant pain was reported, rather just early morning stiffness that resolves with movement. Taken together, this evidence indicates the Veteran’s spine has not substantially worsened following his January 2014 laminectomy, which was performed three months prior to his April 2014 claim for an increased rating. Though there is evidence the Veteran experienced symptoms of radiculopathy and potentially more severe back pain prior to his surgery, there is not evidence of a factually ascertainable increase in the Veteran’s disability in the one year prior to his April 2014 claim. The evidence since the January 2014 operation shows the Veteran’s disability is characterized by pain and stiffness, primarily after prolonged immobility, such as with sitting or after sleep. He has reported in treatment records that this is alleviated with movement, though his VA examinations show prolonged repetitive use has the potential to cause additional pain. No examinations or treatment records indicate the Veteran’s range of motion in forward flexion has ever been limited to 30 degrees or less following his surgery. The evidence likewise does not show the Veteran has experienced ankylosis at any time during the appeal period. As favorable ankylosis or forward flexion of the thoracolumbar spine limited to 30 degrees or less is required for a 40 percent rating, the next highest schedular rating above the Veteran’s current 20 percent evaluation for his lumbar spine disability, under the General Rating Formula for Diseases and Injuries of the Spine, the Board finds he has not met the criteria for a rating in excess of 20 percent during the appeal period. (Continued on the next page)   Regarding neurological symptoms and related impairment, the Board notes the Veteran’s medical records from before his January 2014 surgical operation show that he was experiencing radiculopathy symptoms, including numbness and dropping of the right foot, prior to the period on appeal. Postoperative reports in the Veteran’s medical records as early as March 2014 show that these radiculopathy symptoms were no longer present following his surgery. Furthermore, VA examinations of August 2014 and July 2019 found no signs of radiculopathy or other neurological abnormalities related to the lumbar spine. The Veteran’s treatment records are otherwise silent for radiculopathy symptoms related to the lumbar spine during the appeal period, though the Board observes that the record contains private medical records from 2017 showing radiculopathy of the upper extremities related to a cervical spine disability that has not been granted service connection at this time. For these reasons, the Board finds the preponderance of the evidence is against a separate compensable rating for radiculopathy or other neurological impairments secondary to the Veteran’s service-connected lumbar spine disability. Based on the foregoing, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent for his lumbar spine disability. 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. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Pitman, 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.