Citation Nr: 20044077 Decision Date: 06/30/20 Archive Date: 06/30/20 DOCKET NO. 13-31 880 DATE: June 30, 2020 ORDER Entitlement to a disability rating in excess of 20 percent for degenerative disc disease of the lumbar spine is denied. Entitlement to an effective date of August 8, 2011 for the 20 percent disability rating assigned to degenerative disc disease of the lumbar spine is granted. FINDINGS OF FACT 1. Throughout the appeal period, the preponderance of the evidence is against a finding that the symptoms of the Veteran’s degenerative disc disease of the lumbar spine have most closely approximated ankylosis of the thoracolumbar spine or 30 degrees or less of forward flexion of the thoracolumbar spine. 2. The evidence is at least evenly balanced as to whether symptoms of the Veteran’s degenerative disc disease of the lumbar spine have most closely approximated forward flexion greater than 30 degrees but less than 60 degrees since August 8, 2011. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for degenerative disc disease of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.7, 4.21, 4.25, 4.30, 4.40, 4.45, 4.71a, Diagnostic Code 5242. 2. Resolving reasonable doubt in the Veteran’s favor, the criteria for an increased rating of 20 percent, but no higher, for degenerative disc disease of the lumbar spine have been met since August 8, 2011. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.21, 4.25, 4.30, 4.40, 4.45, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1992 to October 1995. This matter comes to the Board from a June 2012 decision of the Agency of Original Jurisdiction (AOJ), which granted service-connected compensation for degenerative disc disease of the lumbar spine. In its decision, the AOJ assigned a 10 percent disability rating for the lumbar spine, effective August 8, 2011. The Veteran initiated a timely appeal of this rating. In May 2017, the Veteran testified before the undersigned at a videoconference hearing. A transcript of that hearing is of record. The Board remanded this issue for further development in November 2017 and, most recently, in July 2019. In June 2019, the AOJ issued a new decision, increasing the rating assigned for lumbar spine degenerative disc disease from 10 percent to 20 percent, effective November 15, 2018. Because the law potentially authorizes higher ratings for this disability, and because he has not expressed satisfaction with the amount of this increase, the Veteran’s increased rating claim remains on appeal. See A.B. v. Brown, 6 Vet. App. 35, 38 (1993). Rating Criteria A disability rating is determined by applying VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. 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. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board may consider whether separate ratings may be assigned for separate periods of time – a practice known as “staged ratings,” – whether or not the claim concerns an initial rating. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's lower back disability has been evaluated under Diagnostic Code 5242 (degenerative arthritis of the spine). The General Formula for Diseases and Injuries of the Spine (General Formula) applies to this diagnostic code, unless it is appropriate to evaluate the disability under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The Board will apply whichever method results in the higher rating. See 38 C.F.R. § 4.71(a). Under the General Rating Formula, a thoracolumbar spine injury is rated as follows: a 10 percent disability rating is warranted 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, muscle spasm, guarding, or localized tenderness 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 disability 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 spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. The rating criteria further explain, under Note (1), that any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Under 38 C.F.R. § 4.40, DeLuca v. Brown, 8 Vet. App. 202, 206 (1995) and Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011), when evaluating the severity of certain disabilities, including disabilities of the spine, VA is generally required to consider whether the disability resulted in a level of functional loss greater than that already contemplated by the assigned rating. Relevant factors include weakness, fatigability, lack of coordination, restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. Whenever possible, VA examiners assessing the nature of additional functional loss should describe any additional functional limitations, if possible, in terms of additional degrees of range of motion loss. See Mitchell, 25 Vet. App. at 33. VA examination reports for musculoskeletal disabilities must comply with 38 C.F.R. § 4.59 by evaluating range of motion in the affected joint “for pain on both active and passive motion and in weight bearing and nonweight-bearing. . . .” Correia v. McDonald, 28 Vet. App. 158, 170 (2016). Moreover, VA examiners have the duty to elicit information from the Veteran describing the condition of the relevant joints during flare-ups or episodes when the relevant symptoms are at their most severe. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Under 38 C.F.R. § 4.71a, Diagnostic Code 5243, an intervertebral disc syndrome may be rated under either the General Formula or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Under the Formula for Rating Intervertebral Disc Syndrome, incapacitating episodes having a total duration of least 2 weeks but less than 4 weeks during the past 12 months warrant a rating of 20 percent. Incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months warrant a 40 percent rating. Incapacitating episodes having a total duration of at least 6 weeks during the past 12 months warrant a 60 percent rating.   Factual Background To help decide the claim, the AOJ arranged for an examination of the Veteran’s thoracolumbar spine in September 2011. According to the examiner’s report, the diagnosis was degenerative disc disease. The medical history section of the report indicated that this disability was related to an injury the Veteran experienced during his naval service. During initial range of motion testing, the thoracolumbar spine was capable of 70 degrees of forward flexion, 20 degrees of extension, 30 degrees of both left and right lateral flexion, and also 30 degrees of both left and right lateral rotation. The examiner indicated that, during these range of motion tests, he detected evidence of painful motion at 20 degrees forward flexion and at 20 degrees extension. There was no objective evidence of painful motion during left or right lateral flexion or during left or right lateral rotation. According to the report, the Veteran was able to complete repetitive use testing. Immediately after three repetitions, the examiner indicated that all of the range of motion test results remained the same. However, the examiner also wrote that, the Veteran had tenderness in “mid lumbar spine” and that repetitive use “decreases his forward flexion from 70 to 60 on the basis of increasing pain. . .” The examiner indicated that the spine disability was associated with localized tenderness and pain to palpation of the joints or soft tissues. The Veteran also experienced guarding or muscle spasms, but these symptoms did not result in an abnormal gait or in abnormal spinal contour. According to the examiner, the Veteran did not have any signs or symptoms of radiculopathy. And he had no other neurologic abnormalities. The examiner wrote that the Veteran had intervertebral disc syndrome (IVDS). But this condition had not resulted in any incapacitating episodes over the past 12 months. When describing the effects of the disability on the Veteran’s work, the examiner wrote that the Veteran was working as a construction inspector for an engineering firm. In the last 12 months, he had missed four days of work due to lower back pain. The record includes progress notes from the Veteran’s chiropractor, which include one range of motion note, dated August 2011, suggesting that forward flexion was less than 30 degrees and extension was less than 20 degrees. At the videoconference hearing, in May 2017, the Veteran testified that his back symptoms had worsened in severity since his previous VA examination in September 2011. He described physical therapy sessions and referred to a note from his therapist which, according to him, indicated that his muscle spasms caused an abnormal curvature of his spine. When asked about incapacitating episodes and periods of bed rest, the Veteran answered that he was instructed to have one month of bed rest “directly” after his initial in-service injury. According to the Veteran, his back was “in a spasm” approximately 70 percent of the time. Based on the chiropractor’s records and the Veteran’s statement that his lumbar spine condition had increased in severity, the Board remanded this case for a new examination. The requested examination took place in November 2018. According to the examiner’s report, initial range of motion tests indicated forward flexion of zero to 35 degrees. Extension was zero to 10 degrees. Right and left lateral flexion were both zero to 25 degrees. Right lateral rotation was zero to 25 degrees, while left lateral rotation was zero to 20 degrees. According to the examiner, the Veteran refused to perform repetitive use testing and, therefore, the report does not include range of motion test results after three repetitions The November 2018 examiner wrote that there was guarding or muscle spasm of the lumbar spine, but these symptoms did not result in abnormal gait or abnormal spinal contour. Unlike the September 2011 examiner, the November 2018 examiner indicated that the Veteran experienced symptoms of radiculopathy, consisting of moderate pain in both lower extremities and mild paresthesias and numbness on the right side. There was no ankylosis of the spine. The November 2018 report indicates that IVDS was associated with episodes of bed rest with a total duration of at least four weeks, but less than six weeks, in the last twelve months. The examination report form asked the examiner to provide documentation supporting any affirmative answer indicating incapacitating episodes, and the examiner gave the following answer: “Veteran states he has occasional muscle spasms in the back that cause him to be confined to bed, 20x over past year.” The examiner wrote that the lumbar spine condition did not affect the Veteran’s ability to work and that passive range of motion testing “was not performed as it is not feasible to do this in a safe and reasonable manner.” Based on the November 2018 report, the AOJ issued its June 2019 decision increasing the lumbar spine disability rating from 10 percent to 20 percent. The AOJ assigned November 15, 2018 (the date of the examination) as the effective date of the increase. In July 2019, the Board remanded the case after finding that the November 2018 report failed to comply with Sharp, 29 Vet. App. 26, which requires that VA examiners estimate the extent of functional loss after repeated use over time or during “flare-ups” – periods when symptoms are at their worst. If the examination does not take place after repeated use over time or during a flare-up, Sharp requires VA examiners to elicit information from the veteran about the condition of the relevant joint after repeated use over time or during flare-ups. Id. at 34. The most recent thoracolumbar spine examination took place in November 2019. According to the examiner’s report, the diagnoses were degenerative arthritis, IVDS, and lumbar strain. During initial range of motion testing, lumbar flexion was from zero to 50 degrees; extension was from zero to 20 degrees; right and left lateral flexion were both from zero to 25 degrees; likewise, right and left lateral rotation were both from zero to 25 degrees. According to the examiner, the Veteran exhibited pain during both forward flexion and extension. This time the Veteran was capable of repetitive use testing. After three repetitions, forward flexion was zero to 40 degrees; extension was zero to 10 degrees; right and left lateral flexion were both zero to 15 degrees; and right and left lateral rotation were also both zero to 15 degrees. The Veteran’s functional loss took the form of pain and weakness. Although the examination did not take place during a flare-up or after repeated use over time, the November 2019 examiner complied with Sharp by providing estimates of range of motion under these conditions. Both for flare-ups and after repeated use over time, the examiner provided the same estimates: forward flexion of zero to 40 degrees; extension of zero to 10 degrees; left and right lateral flexion of zero to 15 degrees; and left and right lateral rotation from zero to 15 degrees. The examiner wrote that the Veteran experienced muscle spasms, but these did not result in abnormal gait or abnormal spinal contour. There was no ankylosis of the spine. Although the Veteran had IVDS, there had been no incapacitating episodes requiring bed rest prescribed by a physician during the past twelve months. The November 2019 examiner complied with 38 C.F.R. § 4.59 and Correia by indicating, in part 3A of the report, that the initial range of motion test results were on active motion and in weight-bearing and further explaining, in section 17 of the report, that the results of range of motion testing in passive motion were the same as in active motion, and that, during passive range of motion testing, pain appeared at the same points as during active range of motion testing. Section 17 of the November 2019 report provided additional information on the effects of the Veteran’s disability on his work. The Veteran told the examiner that he was unable to perform activities that require frequent and repetitive bending of his lower back. There were also limits on his ability to perform heavy lifting. The Veteran had moved to a new position with his firm to avoid the need for prolonged standing. According to the examiner, the Veteran remained capable of performing sedentary work. In addition to these reports, the Board has reviewed the post-service VA medical treatment records. In May 2013, during his first appointment with a primary care physician, the Veteran estimated the pain associated with his lumbar spine as 1 on a scale of zero to 10. He subsequently described his pain as 3 in November 2013, 7 in January 2015, 5 in April 2015, 3 in May 2015, zero in June 2015, 4 in September 2015, 5 in December 2015, 1 in January 2016, 6 in March 2016, 8 in July 2016, 5 in August 2016, 2 in November 2016, and 3 in January 2018. None of these treatment notes include detailed range of motion test results, but the records refer to “acceptable” range of motion in November 2016 and “moderately restricted” lumbar extension in March 2016. As the Veteran mentioned in his hearing testimony, a physical therapy note describes “increased lordosis due to [anterior] tilt pelvis” in January 2016. On two occasions in February 2016, the Veteran was able to perform back stretching exercises under the supervision of a physical therapist without experiencing muscle spasms. According to the most recent VA treatment records, the Veteran’s chronic back pain was described as “stable” and he estimated his pain at 3 in February 2020.   Analysis There are three possible arguments either asserted by the Veteran or raised by the record which could potentially support the assignment of a disability rating higher than 20 percent for degenerative disc disease of the lumbar spine. As noted, the November 2018 examiner indicated that the Veteran’s IVDS was associated with incapacitating episodes with a total duration of at least 4 weeks but less than 6 weeks within the past 12 months. This finding suggests that a 40 percent rating would be appropriate under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. See 38 C.F.R. § 4.71a. Note (1) to this Formula defines an incapacitating episode as 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). The November 2018 examiner’s note explaining the affirmative response to the question about incapacitating episodes (“Veteran states he has occasional muscle spasms in the back that cause him to be confined to bed, 20x over past year”) suggests that the response was based on statements of the Veteran indicating that he personally decided to remain in bed on these occasions, not that a physician prescribed a period of bed rest. This finding is consistent with the Veteran’s hearing testimony. When he was asked about periods of bed rest prescribed by a physician, the Veteran responded only that he had required one month of bed rest immediately after his initial in-service injury. He did not mention any period of physician-prescribed bed rest during the relevant appeal period. The Board has also reviewed the Veteran’s VA records for the 12 month period prior to the November 2018 examination, which describe regular appointments, mostly for the purposes of psychiatric and dermatology treatment. There is nothing in these records to indicate that incapacitating episodes of IVDS resulted in any periods of bed rest prescribed by a physician. Under these circumstances, an increased 40 percent rating based on incapacitating episodes would not be appropriate. The August 2011 chiropractor’s note, indicating that forward flexion was less than 30 degrees, could potentially support the assignment of a 40 percent rating under the General Rating Formula for Diseases and Injuries of the Spine, for “forward flexion of the thoracolumbar spine 30 degrees or less. . .” 38 C.F.R. § 4.71a. But less than two months later, a VA examiner administered range of motion tests and found that the Veteran’s lumbar spine was capable of 70 degrees of forward flexion. Even after repetitive use, the examiner wrote that the Veteran remained capable of 60 degrees of forward flexion. It is significant that the Veteran testified that, after the September 2011 VA examination, the symptoms of his lumbar spine disability “absolutely” worsened in severity. Accordingly, the AOJ arranged two subsequent lumbar spine examinations, both of which involved range of motion tests. While there is some variation, all of the test results since September 2011 indicated that the Veteran’s lumbar spine was capable of more than 30 degrees of forward flexion. Even after complying with Sharp – based on his in-person examination and information elicited from the Veteran about his symptoms – the November 2019 examiner estimated that the lumbar spine remained capable of 40 degrees of flexion during flare-ups and after repeated use over time. Under the General Rating Formula, if the Veteran’s symptoms more closely approximated back pain with 30 degrees of forward flexion or less, either throughout the relevant appeal period or for an identifiable interval of time within that period, then an increased 40 percent rating would be appropriate. But such a finding would be inconsistent with the Veteran’s testimony that his symptoms worsened after September 2011 and with all of the VA lumbar spine range of motion measurements after August 2011. For these reasons, it is most likely that the chiropractor’s August 2011 note indicates a test during a flare-up of such exceptionally unusual severity that, as far as we know, nothing similar has ever occurred again or that the chiropractor was indicating the point during forward flexion when the Veteran began to experience pain – which would be consistent with the September 2011 VA examiner’s finding that objective evidence of pain began at 20 degrees of forward flexion. Both possibilities are more likely than the theory that the Veteran’s lumbar spine symptoms have most closely approximated forward flexion of 30 degrees or less at any identifiable time within the relevant appeal period. The Veteran has suggested, in his hearing testimony, that he should be granted an increased rating because his muscle spasms cause abnormal spinal contour. Under the General Rating Formula, muscle spasms severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis satisfy the criteria for the previously assigned 20 percent rating. But additional limited motion is needed for an increased 40 percent rating. As the Board will explain below, this decision will move forward effective date of the 20 percent rating previously assigned by the AOJ so that it applies to the entire appeal period. As noted, both of the most recent VA examiners disputed the Veteran’s suggestion that his muscle spasms cause abnormal spinal contour. But even if that suggestion were true, it would not justify the assignment of a rating higher than 20 percent. Under these circumstances, the disagreement over the significance of the Veteran’s muscle spasms has become moot. Note (1) to the General Rating Formula requires the adjudicator to evaluate objective neurologic abnormalities separately, under an appropriate diagnostic code. As noted, the VA examiners indicated a diagnosis of radiculopathy. Accordingly, the AOJ issued a decision in April 2020, assigning separate ratings of 20 percent for radiculopathy of the right and left lower extremities. If the Veteran believes these ratings are too low, he should appeal the AOJ’s decision before April 2021. Other than radiculopathy of the lower extremities, there is no evidence of neurologic abnormalities associated with his service-connected lumbar spine disability. For these reasons, the preponderance of the evidence is against the assignment of a rating higher than 20 percent for service-connected degenerative disc disease at any time during the relevant appeal period (August 8, 2011 to the present). To the extent that the Veteran seeks a rating higher than 20 percent, his claim is denied. As noted, the effective date of the previously assigned 20 percent rating is November 15, 2018. Before then, the 10 percent rating initially assigned to the lumbar spine disability by the AOJ in its June 2012 decision remains in effect. Thus, the Board must decide whether the Veteran is eligible for a rating higher than 10 percent between August 8, 2011 and November 15, 2018. As noted, the September 2011 examination report indicates that, at that time, the Veteran was capable of 70 degrees of forward flexion. It is significant that, having taken place before the Court issued its decisions in Correia and Sharp, the first VA examiner failed to test range of motion using all the methods required by 38 C.F.R. § 4.59. According to the September 2011 report, the Veteran told the examiner that he experienced flare-ups, but the examiner did not estimate of the extent of functional loss during flare-ups, or after repeated use over time, in terms of additional degrees of limited motion. Moreover, during the initial test of forward flexion and during the test of forward flexion after repetitive use, the examiner reported that objective evidence of painful motion began after only 20 degrees of forward flexion. The Board has considered the possibility of remanding the case to the AOJ for further development to help assess the severity of the Veteran’s lumbar spine symptoms between August 2011 and May 2017. Unfortunately, any future examination would necessarily describe the Veteran’s symptoms long after the end of the relevant period. And a retrospective medical opinion would necessarily be somewhat speculative because of the passage of time and due to the subjective and imprecise nature of the most plentiful available medical data concerning the relevant time, such as the Veteran’s frequent self-reported estimates of his back pain on a scale of 1 to 10. 38 C.F.R. §§ 4.40, 4.45, DeLuca and Mitchell, authorize the assignment of a rating for musculoskeletal disabilities greater than that contemplated by the available range of motion criteria in some circumstances, depending on factors like weakness, fatigability, lack of coordination, restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. And 38 C.F.R. § 4.59 indicates that the adjudicator must consider all the listed methods of range of motion testing when deciding whether to apply sections 4.40 and 4.45 to increase the assigned rating. As noted, the absence of relevant range of motion testing information and information about functional limitations during flare-ups at the relevant time is largely a product of inadequacies in the September 2011 examination. The point when pain began during initial forward flexion and the August 2011 chiropractor’s note suggest that, if the examiner had administered all the required range of motion tests, the resulting information quite plausibly could have approached or satisfied the criteria for a 20 percent rating based on limited motion. For these reasons, there is a reasonable possibility that the previously assigned 10 percent rating understates the severity of the Veteran’s symptoms at the relevant time. Resolving reasonable doubt in the Veteran’s favor, the Board will move forward the effective date of his currently assigned rating of 20 percent from November 15, 2018 to August 8, 2011. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Nye, 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.