Citation Nr: 21000555 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 14-35 777 DATE: January 5, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease of the lumbosacral spine (lumbar spine disability) prior to June 15, 2020 is denied. Entitlement to a disability rating in excess of 40 percent for lumbar spine disability from June 15, 2020 is denied. FINDINGS OF FACT 1. Prior to June 15, 2020, the evidence shows forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, and no muscle spasms or guarding. 2. From June 15, 2020, the evidence does not establish ankylosis of the thoracolumbar spine. 3. Separate ratings were established for all of the Veteran’s associated neurological abnormalities, to include bilateral lower extremity radiculopathy, bowel impairment, and bladder impairment. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating in excess of 10 percent for lumbar spine disability prior to June 15, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242. 2. The criteria for entitlement to a disability rating in excess of 40 percent for lumbar spine disability from June 15, 2020 have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.27, 4.40, 4.45, 4.71a, DC 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty from March 1968 to September 1971, to include service in the Republic of Vietnam. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2012 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in February 2020. A transcript of this hearing has been associated with the record. During the pendency of this appeal, a July 2020 rating decision was issued wherein the Agency of Original Jurisdiction (AOJ) increased the Veteran's disability rating for his lumbar spine disability to 40 percent, effective June 15, 2020. As this decision constituted only a partial grant of benefits sought, the issue of a higher evaluation for both stages remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). As a preliminary matter, the Board notes that this claim was previously before the Board in March 2020, at which time it was remanded to the AOJ for further evidentiary development. In consideration of this appeal, the Board is satisfied that there has been substantial compliance with its March 2020 remand directives, and as such, will proceed with appellate review. See Stegall v. West, 11 Vet. App. 268 (1998). Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). 1. Entitlement to an initial disability rating in excess of 10 percent for degenerative joint disease of the lumbosacral spine (lumbar spine disability) prior to June 15, 2020 is denied. The Veteran contends that he is entitled to an initial disability rating in excess of 10 percent for his lumbar spine disability prior to June 15, 2020. Specifically, the Veteran asserted that he is unable to perform daily tasks due to the severity of his lumbar spine disability, and that he is only able to walk, sit, or stand for short periods of time. See e.g., September 2014 VA Form 9. Back disabilities may be evaluated under either of two general rating formulas. One applies to intervertebral disc syndrome (IVDS) and is based upon the duration of incapacitating episodes. The other general rating formula involves the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating will be 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, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent of more of height. See 38 C.F.R. § 4.71a. A 20 percent rating is assigned 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. Id. A 40 percent rating requires evidence of forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating will be assigned with evidence of unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent rating requires evidence of unfavorable ankylosis of the entire spine. Id. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted when there are incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months; a 20 percent rating is warranted when there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months; and a 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating is warranted when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. An incapacitating episode is defined 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. See 38 C.F.R. § 4.71a, DC 5243, Note (1). Evidence relevant to the level of severity of the Veteran’s lumbar spine disability during this period on appeal includes his lay statements, VA treatment records, multiple VA examinations and accompanying reports. The Veteran was first afforded a VA examination in November 2012. During the examination, the Veteran reported that he first began experiencing low back pain in the 1980s, and that he now experiences chronic pain every day. The Veteran reported experiencing flare-ups of his lumbar spine condition about “once a year, when the pain radiates down both his legs.” The Veteran reported that when he does experience these flares, he is “at home for about one week, resting” but that he is able to manage his activities of daily living. Upon range of motion testing, the VA examiner found that the Veteran’s forward flexion was limited to 70 degrees, with painful motion beginning at 65 degrees; extension was limited to 25 degrees with no evidence of objective painful motion; right and left lateral flexion limited to 25 degrees; and right and left lateral rotation limited to 30 degrees or greater. The VA examiner noted that the Veteran did not have functional loss or impairment or additional limitation of range of motion after repetitive use. The VA examiner indicated that the Veteran did not have guarding or muscle spasms of the thoracolumbar spine. The VA examiner also recorded that the Veteran had no signs or symptoms of radiculopathy or any other neurologic abnormalities at the time of this examination. The VA examiner indicated that the Veteran did not have a diagnosis of IVDS. The Veteran was afforded a second VA examination for his lumbar spine disability in January 2016. During this examination, the Veteran reported experiencing chronic, recurrent back pain and decreased range of motion. The Veteran indicated that he experiences flare-ups of his lumbar spine disability, during which his ability to bend, life, and sit, stand, or walk for prolonged periods of time are impacted. The VA examiner indicated that the Veteran’s range of motion measurements were abnormal, and upon testing, reflected that the Veteran’s forward flexion was limited to 80 degrees; extension was limited to 15 degrees; right and left lateral flexion was limited to 15 degrees; and right and left lateral rotation was limited to 20 degrees. The VA examiner reported that pain was noted on every range of motion during the examination and causes functional loss. The VA examiner also noted mild tenderness to the lumbar area with associated facial expression of pain on palpation. The VA examiner indicated that the Veteran did not have guarding or muscle spasms of the thoracolumbar spine. The January 2016 VA examiner noted that the Veteran has radicular pain and associated symptoms of radiculopathy in the right lower extremity, but that the left lower extremity was not affected. The VA examiner observed no ankylosis of the Veteran’s spine, and the Veteran did not report any neurologic abnormalities. The VA examiner indicated that the Veteran had a diagnosis of IVDS, but that he had not experiences any episodes of acute signs and symptoms that required best rest prescribed by a physician in the past 12 months. VA treatment records reflect persistent complaints of low back pain as well as abnormal range of motion, consistent with the VA examination findings of record. See e.g., October 13, 2015 primary care nursing note; March 26, 2015 primary care nursing note; October 21, 2009 chiropractic consult. The Veteran was afforded a Travel Board hearing in February 2020. During the hearing, the Veteran testified regarding the pain and functional impact of his lumbar spine disability: “[i]f I bend a certain direction or, and especially to the sides, on way or the other, or bend over too far past, there’s a point of no return that I get a piercing pain that goes through me. And it could incapacitate me or just away quickly. But some, most, of the time, it takes me to my knees if I get to that certain point. And it limits me from doing a lot of things.” The Veteran’s spouse testified during the hearing that since 2010, she has seen a “major decline in [the Veteran’s] activities and what he can do when he’s limited.” The Veteran’s spouse indicated that they used to be very active, enjoyed walking and hiking, but now due to his lumbar spine disability, they are unable to do those things. The Veteran also testified that during the last six to eight months prior to the hearing, he has begun to experience difficulties with controlling his bowels and his bladder. Viewing the lay and medical evidence as a whole, prior to June 15, 2020, an initial disability rating in excess of 10 percent is not warranted for the Veteran's lumbar spine disability. The November 2012 VA examiner noted forward flexion of the thoracolumbar spine of 70 degrees and combined range of motion of the thoracolumbar spine of 205 degrees. The January 2016 VA examiner noted forward flexion of the Veteran’s thoracolumbar spine of 80 degrees and combined range of motion of the thoracolumbar spine of 165 degrees. Both VA examination findings are consistent with the other medical evidence of record for this period on appeal. Both VA examiners noted no muscle spasms or guarding of the Veteran’s thoracolumbar spine. Accordingly, the evidence does not show flexion limited to 60 degrees or less, combined range of motion of 120 degrees or less, 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 rating in excess of 10 percent is not warranted for the Veteran's lumbar spine disability prior to June 15, 2020. The Board has considered the presence of flareups in this context. While the Veteran has contended that he experiences flare-ups during the appeal period, and, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court stated that flare-ups must be considered, there is no indication that the Veteran's flare-ups result in additional loss of motion. Furthermore, the guidance on how to evaluate flare-ups has not been particularly clear. As a consequence, it is determined that the holding in Mitchell v. Shinseki, 25 Vet. App. 32 (2011) will be expanded and it is found that flare-ups must be quantifiable and must result in limitation of motion of function beyond that contemplated by the already provided evaluation. Additionally, because there is a regulation addressing the stabilization of ratings, flare-ups must be of such length as to establish that the overall impairment is more severe than currently evaluated. The statements made in this case do not show that any flare-ups have additionally limited function in a quantifiable way, nor do they show that they are of such length or duration that a staged rating would not violate the rule regarding stabilization of ratings. The Board has also considered whether any separate evaluations are applicable here for additional disability associated with the service-connected back disability. However, the Board notes that the Veteran is currently in receipt of a separate rating for his radiculopathy of the right lower extremity since January 2016, which represents the first medical evidence of associated neurological abnormality. Furthermore, there is no medical evidence of associated bowel or bladder disability during this stage of the appeal period. As such, no additional separate evaluations are warranted for the Veteran's lumbar spine disability prior to June 15, 2020. 2. Entitlement to a disability rating in excess of 40 percent for lumbar spine disability from June 15, 2020 is denied. In the October 2020 supplemental statement of the case, after the Board’s remand for additional examination, the Veteran’s rating was increased to 40 percent, effective the date of his VA orthopedic examination. Under the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent disability rating is warranted if there is forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine, with or without symptoms such as pain, stiffness or aching. A 100 percent disability rating is warranted if there is unfavorable ankylosis of the entire spine, with or without symptoms such as pain, stiffness or aching. However, if there is a diagnosis of IVDS, as mentioned above, the disability may be rated under either the General Rating Formula for Diseases and Injuries of the Spine or 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. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (6). Evidence relevant to this period on appeal includes a VA examination and accompanying report. Pursuant to the Board’s March 2020 remand, the Veteran was afforded a new VA examination in June 2020. During this examination, the Veteran reported a long history of back pathology dated back to 1970. The Veteran indicated that his symptoms had progressed and evolved to include bilateral lower extremity radiculopathy, to include paresthesia and numbness to his feet. The Veteran reported that he has undergone extensive physical therapy and pain management interventions to no avail. The Veteran also reported that his chronic baseline pain is about a 5 out of 10, with multiple flare-ups per day resulting in pain of about a 10 out of 10 severity level. During flare-ups, the Veteran reported that his mobility is now very limited and as such, he avoids movement. Upon range of motion testing, the VA examiner found the Veteran’s range of motion to be abnormal. The Veteran’s forward flexion was limited to 20 degrees; extension limited to 10 degrees; right and left lateral flexion limited to 10 degrees; and right and left lateral rotation limited to 10 degrees. The VA examiner indicated that pain was noted on range of motion testing on every range and causes functional loss. The VA examiner estimated that during a flare-ups of his lumbar spine disability, the Veteran’s range of motion is further limited to forward flexion of 10 degrees; extension of 5 degrees; right and left lateral flexion of 5 degrees; and right and left lateral rotation of 5 degrees. The VA examiner reported that the Veteran does not have any guarding or muscle spasms of the thoracolumbar spine. Regarding the Veteran’s radiculopathy, the VA examiner stated that the Veteran now has moderate radiculopathy in his right lower extremity and mild radiculopathy in his left lower extremity. The VA examiner did not find that the Veteran had IVDS. The VA examiner did not observe ankylosis of the Veteran’s thoracolumbar spine. Regarding neurologic abnormalities related to his lumbar spine disability, an addendum to the June 2020 VA examination was obtained in August 2020. In this addendum, the VA examiner stated that “[s]tool and urinary incontinence (Veteran’s contention of bowel and bladder problems) are at least as likely as not due to the back pathology. Extensive lumbar-sacral pathology can cause impingement that impacts the S3 through S5, the nerves that control bowel and bladder function.” The Board notes that also of record is a July 2020 rating decision which granted service connection and a separate disability rating for radiculopathy of the left lower extremity. Further, an October 2020 rating decision granted the Veteran service connection for urinary incontinence and stool incontinence with separate disability ratings of 60 percent and 30 percent, respectively. In view of the above, the Board finds the preponderance of the evidence weighs against an increased disability rating in excess of 40 percent from June 15, 2020 for the Veteran’s service-connected lumbar spine disability. The medical evidence of record does not demonstrate unfavorable ankylosis of the entire thoracolumbar spine, as required by the rating criteria for a 50 percent disability rating. In sum, the preponderance of evidence weights against a disability rating in excess of 40 percent from June 15, 2020 for the Veteran’s lumbar spine disability, and as such, his claim must be denied. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. M. Lowman, 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.