Citation Nr: 21000765 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 12-23 487 DATE: January 6, 2021 ORDER From July 23, 2009 to December 13, 2012, and from February 1, 2013 forward, an increased disability rating higher than 40 percent for the service-connected back disability is denied. FINDINGS OF FACT 1. The Veteran has present-day back disabilities of lumbosacral strain, degenerative arthritis, and intervertebral disc syndrome (IVDS). 2. From July 23, 2009 to December 13, 2012, and from February 1, 2013 forward, the Veteran has not had incapacitating episodes of signs and symptoms of IVDS that required physician-prescribed bed rest and treatment by a physician. 3. From July 23, 2009 to December 13, 2012, and from February 1, 2013 forward, even with considerations of limitations due to pain and during flareups, the symptomatology and functional impairment of the service-connected back disability most nearly approximated forward flexion of the thoracolumbar spine of 30 degrees or less; and even with considerations of limitations due to pain and during flareups, the service-connected back disability did not more nearly approximate unfavorable ankylosis of the entire thoracolumbar spine. CONCLUSION OF LAW From July 23, 2009 to December 13, 2012, and from February 1, 2013 forward, the criteria for a rating in excess of 40 percent for the back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5237, 5242, 5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active duty service from May 1980 to May 2000. The instant case is on appeal from a July 2010 Department of Veterans Affairs (VA) Regional Office (RO) rating decision that, in pertinent part, increased the disability rating for the back disability to 40 percent disabling. This appeal has been before the Board of Veterans’ Appeals (Board) before. Most recently, an April 2019 Board remand required a new VA examination because of insufficient information and analysis concerning flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26, 36 (2018). A review of the record demonstrates that the required VA examination has been procured and, accordingly, there has been substantial compliance with the terms of the remand and adjudication can occur. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 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, 5126; 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326. The Board finds that the duties to notify and assist have been met. Disability Ratings Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. § Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating 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 the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. 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. For disabilities of the musculoskeletal system, the Board also considers whether a higher disability rating is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling, and pain on movement. 38 C.F.R. § 4.45. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to affected joints. Muscle spasm will greatly assist the identification. Sciatic neuritis is not uncommonly caused by arthritis of the spine. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. 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. 38 C.F.R. § 4.59. The General Rating Formula of the Spine provides a 10 percent rating 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 rating is 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 disability rating is provided for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is provided for unfavorable ankylosis of the entire thoracolumbar spine. A 100 (total) rating is provided for unfavorable ankylosis of the entire spine. Note (2) (See also Plate V) provides that, for VA compensation purposes, normal forward flexion of the lumbar spine is zero to 90 degrees, extension is zero 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. The normal combined range-of-motion of the lumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range-of-motion. Under DC 5243 (IVDS), a 10 percent disability rating is assigned with incapacitating episodes having a total duration of at least 1 weeks but less than 2 weeks during the past 12 months; a 20 percent disability rating is assigned 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 disability rating is assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a maximum 60 percent disability rating is assigned with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1): 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. Rating the Back Disability from July 23, 2009 to December 13, 2012, and from February 1, 2013 Forward Preliminarily, the Veteran had back surgery during the pendency of this appeal. The RO issued a temporary total (100 percent) convalescent rating under 38 C.F.R. § 4.30 that lasted from December 14, 2012 through January 31, 2013. Because the temporary total rating yields the maximum rating possible for the back disability, the time period of convalescence is not on appeal, and will not be discussed further. Second, the Veteran has been examined multiple times over the appellate period and the November 2015 examiner diagnosed IVDS in addition to spinal stenosis and lumbosacral strain. Because IVDS has alternative rating criteria, it is necessary to note that the same examiner concluded that the Veteran did not have episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in a twelve month period. See Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Because there are no incapacitating episodes in this case as a matter of fact, the General Rating Formula for Diseases and Injuries of the Spine will control the rating of the back disability. 1. After a review of all the evidence, lay and medical, the Board finds that the criteria for a disability rating in excess of 40 percent are not warranted for any period of the appeal. The weight of the lay and medical evidence shows that, from July 23, 2009 to December 13, 2012, and from February 1, 2013 forward, even with considerations of limitations due to pain and during flareups, the symptomatology and functional impairment of the service-connected back disability most nearly approximated forward flexion of the thoracolumbar spine of 30 degrees or less. The evidence also shows that, even with considerations of limitations due to pain and during flareups, the service-connected back disability did not more nearly approximate unfavorable ankylosis of the entire thoracolumbar spine at any time. At a September 2009 examination of the spine, the Veteran reported daily lower back pain with intermittent spasms and pain and parasthesias to the left lower extremity, and flare-ups that were severe, weekly, lasting hours, precipitated by bending or lifting or sneezing, and alleviated by rest, heat, and ice. Range of motion was 5 degrees flexion (normal is 90 degrees), extension to 15 degrees (normal is 30), left lateral flexion to 15 degrees (normal is 30 degrees), left lateral rotation to 20 degrees (normal is 30 degrees), and right lateral rotation to 15 degrees (normal is 30 degrees). Because the forward flexion measured to 30 degrees or less and because there was no mention of unfavorable ankylosis of the entire thoracolumbar spine, a 40 percent rating is warranted. The Veteran provided a lay statement and statements from his wife, daughter, and coworkers in November 2009. These statements reflect inability to do things like put on socks and shoes and wash his hair, impact job performance, and that substantial modifications were needed at work. An examination after surgery, conducted in November 2015, showed a diagnoses of IVDS, spinal stenosis, and lumbosacral strain. The Veteran talked about worsening back pain and radicular symptomatology (that are separately rated), and reported flare-ups that are like someone poking something into him and cramping in the back. Functional impairment included only getting four hours of sleep per night because of having to turn consistently because of numbness and pain. The Veteran reported that he cannot pick up his grandkids and that VA got him a standing desk and a footrest and a specialized chair for work. Range of motion measured 20 degrees forward flexion, 15 degrees extension, 20 degrees right lateral flexion, 20 degrees left lateral flexion, 15 degrees right lateral rotation, and 15 degrees left lateral rotation. There was no additional range of motion loss with repetition. The VA examiner noted that there was no ankylosis. The Veteran provided lay statements in November 2015 that further described the nature of the back disability, including the impact on work and daily functioning, but did not describe ankylosis of the entire thoracolumbar spine. In a January 2017 Board remand, the November 2015 VA examination was deemed to violate Correia v. McDonald, 28 Vet. App. 158 (2016), as there was not a discussion of pain on active and passive motion in weightbearing and non-weightbearing. For this reason, VA examined the Veteran again in April 2017. The diagnoses were lumbar disc disease and lumbar strain. Functional loss was reported or assessed to b difficulty with prolonged sitting and standing. Range of motion was 30 degrees forward flexion, 5 degrees extension, 15 degrees bending to both sides, 20 degrees rotating to the right, and 15 degrees rotating to the left. There was subjective evidence of pain at the end of the range of motion measurements. Non-weightbearing was done while sitting and included forward flexion to 20 degrees, extension to 20 degrees, bending to both sides to 20 degrees, and rotating to both sides to 20 degrees. Both were active range of motion measurement sets. The VA examiner stated that passive range of motion is contraindicated in painful spinal disorders. There was no ankylosis. The April 2017 VA examiner was asked to reconcile the prior examinations, if such reconciliation was possible. The VA examiner opined that, in looking at the range of motions from the past examinations, there were just some slight differences that may represent day-to-day variability in symptoms. The forward flexion measurement from the April 2017 VA examination, with no ankylosis, is consistent with a 40 percent disability rating. In November 2017, the Board remanded the case again because the Veteran had reported in April 2017 that he experienced flare-ups, during which he needs assistance dressing and has trouble bending, but the VA examiner did not discuss whether there were additional range of motion limitations on functional ability on repeated use or during flare-ups. A June 2018 VA examination report reflects measures of forward flexion to 10 degrees, extension was to 5 degrees, bending to both sides was 15 degrees, rotating to the right was 20 degrees, and rotating to the left was 15 degrees. The Veteran reported subjective pain at the end range of flexion, extension, and bending to both sides. Non-weightbearing done while seated measured 10 degrees forward flexion, 10 degrees extension, 10 degrees bending to both sides, and 10 degrees rotating to both sides. The VA examiner stated that the examination was not occurring during a flare-up. There was no ankylosis. The Veteran trouble with prolonged walking and standing at work and has lost 10 full days and 100 half-days due to back pain in the past year. In April 2019, the Board remanded the decision again for additional assessment of functional loss during flareup. A December 2019 VA examination showed a diagnosis of degenerative arthritis of the spine and lumbar sensory radiculopathy. The Veteran reported lower back pain has been worsening and is constant with variable intensity, usually worse in the morning. The functional impairment includes that he must have his wife help him in dressing and showering daily. The range of motion measurements were 30 degrees forward flexion, 20 degrees extension, 20 degrees right lateral flexion, 25 degrees left lateral flexion, 30 degrees right lateral rotation, 30 degrees left lateral rotation. Limited forward flexion interferes with performing all activities below waist level, such as dressing below the waist and showering lower extremities. There is pain on all movements and mild to moderate guarding that results in abnormal gait or spinal contour. There is pain that limits functional ability with repeated use over a period of time, which is experienced as 35-40 degrees forward flexion, 15-25 degrees extension, 15-20 degrees right lateral flexion, 20-30 degrees right lateral rotation, and 25-30 degrees left lateral rotation. Muscle strength was normal, with no atrophy. There is no ankylosis. The December 2019 VA examination supports a finding of forward flexion that is 30 degrees or less, with no ankylosis. Although it appears from the examination that the repeated use measurement is actually greater than 30 degrees, the lower (first) measurement will control the analysis. (Continued on the next page)   Because there is consistently, throughout the appellate period, forward flexion that is 30 degrees or less, with no ankylosis, and no incapacitating episodes of IVDS, the appeal for a back disability rating in excess of 40 percent must be denied. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Smith, 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.