Citation Nr: 21001579 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 10-47 975 DATE: January 11, 2021 ORDER Prior to July 29, 2015, entitlement to a rating in excess of 20 percent disabling for lumbar spine disability is denied. FINDING OF FACT Prior to July 29, 2015, the Veteran’s lumbar spine disability was not manifested by forward flexion limited to 30 degrees or less, ankylosis, or intervertebral disc syndrome (IVDS) with incapacitating episodes having a total duration of at least 4 weeks, but less than 6 weeks during the past 12 months. CONCLUSION OF LAW Prior to July 29, 2015, the criteria for a rating in excess of 20 percent disabling for lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5003, 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1977 to January 1997. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2009 rating decision by a Department of Veterans Affairs Regional Office (RO). By way of history, an August 2017 Board decision denied entitlement to a rating in excess of 20 percent prior to July 29, 2015. The Board additionally denied entitlement to a staged rating in excess of 40 percent as of July 29, 2015. The Veteran appealed the portion of the Board’s decision denying entitlement to a rating in excess of 20 percent prior to July 2015 to the U.S. Court of Appeals for Veterans Claims (Court). In a June 2018 Order, the Court vacated that portion of the Board’s August 2017 decision and remanded for readjudication in compliance with the Joint Motion for Remand (JMR). In pertinent part, the JMR found the Board erred by relying on a May 2009 VA examination. Thereafter, a December 2018 Board decision remanded this claim to obtain a supplemental VA examination report. The Board notes that the requested VA examination report was obtained in September 2019 and has been associated with the claims file. In September 2020, the claim was remanded again to provide the Veteran’s representative a supplemental statement of the case (SSOC). The SSOC was provided in October 2020. Accordingly, after reviewing the actions of the AOJ, the Board finds there was substantial compliance with the requested development. Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating 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 ratings 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. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more nearly approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 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, and the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When rating musculoskeletal disabilities on the basis of limited motion of a joint, VA must consider functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered only in conjunction with diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). Schedular ratings for disabilities of the spine are provided by application of the General Rating Formula for Diseases or Injuries of the Spine or by application of the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 38 C.F.R. § 4.71a. The General Formula specifies that the criteria and ratings apply with or without symptoms such as pain, whether or not it radiates, stiffness, or aching in the area affected by residuals of injury or disease. 38 C.F.R. § 4.71a. Under the General Rating Formula for Diseases or Injuries of the Spine, the diagnostic code criteria pertinent to lumbar spine disabilities provides that a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; a 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 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. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine. Ankylosis is defined, for VA compensation purposes, as a condition in which all or part of the spine is fixed in flexion or extension. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine, Note (5). Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine, Note (1). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral extension are 0 to 30 degrees, and left and right lateral rotation are 0 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 for the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine, Note (2). Round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine, Note (4). Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is assigned where there are incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is assigned where there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is assigned where 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 assigned where there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 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. 38 C.F.R. § 4.71a; Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). Lumbar Spine Rating Prior to July 29, 2015 The Veteran filed an increased rating claim in October 2008. The evidence of record includes a January 2009 letter from a treating chiropractor who noted that the Veteran presented in December 2008 with lower back pain caused by a lifting injury. The Veteran was noted as ambulatory and using a cane. A physical examination revealed severe muscle spasm with restricted ROM. No ROM findings were provided. Pain was not found to radiate into the lower extremities. It was noted that the Veteran was treated with spinal traction, and ROM and muscle spasms were noted to have improved following treatment. An April 2009 MRI study revealed a broad based disc bulge with small focal central disc protrusion with minimal central canal narrowing and mild neural foraminal narrowing at L3-L4, broad based disc bulge asymmetrical to the right with mild ligamentis hypertrophy at L4-L5, and broad based disc bulge without significant central canal narrowing at L5-S1. See Private Medical Records Received August 2015. The Veteran underwent a VA examination in May 2009. The examiner noted a diagnosis for DDD with sciatica. The Veteran reported having daily back pain, stiffness and decreased motion. He also reported pain into his left lower extremity. He denied any bladder symptoms. In addition, the Veteran reported flare-ups which were described as severe and caused by stooping, bending and lifting. The Veteran further reported that within the past 12 months he had an incapacitating episode causing him to miss three weeks of work. ROM testing revealed forward flexion to 45 degrees and extension to 10 degrees. The examiner noted that pain was elicited with all ROM testing and that the Veteran stopped when pain started. Functional impact was noted as due to pain which caused limitation of motion. Repetitive-use testing did not result in decreased ROM. The examiner stated that estimating ROM during flare-ups would require mere speculation. No muscle spasm, guarding, weakness or tenderness was found. The examiner also noted functional limitations on standing and walking. The Veteran’s lumbar spine disability was not manifested by ankylosis. A neurological examination was found normal for sensation, strength, deep tendon reflexes, and straight leg testing was negative. In his June 2010 notice of disagreement (NOD), the Veteran reported being in constant pain, with pain increased due to normal work and daily activity movements. In his November 2010 VA Form 9, Substantive Appeal, the Veteran reported sciatic nerve symptoms in his lower extremity. A June 2014 physical therapy referral noted that the Veteran was seen in the emergency room for back spasms and injury caused due to tweaking his back. It was further noted that the Veteran was being treated by a chiropractor, that he had received shots and pain medication, and that he utilized a back brace. The Veteran denied any current shooting pain into his legs or any bowel or bladder problem. See Private Medical Records Received August 2015. Another June 2014 private medical record also noted that the Veteran was recently seen in the emergency room due to back spasms. Pain was currently rated a 6 on a scale to 10, with continuous pain noted over the past three weeks. A lumbar spine physical examination noted tenderness exhibited on palpation on the left side and abnormal ROM. The physician further noted that “lumbosacral spine demonstrated full ROM.” Pain was also noted as elicited by motion. No current muscle spasms were present. A straight-leg test was negative for both legs. Muscle strength and reflex testing were also normal. See Private Medical Records Received April 2017. A July 2014 MRI study revealed the following at L2-L3: mild broad-based disc bulge with mild bilateral degenerative facet joint disease; a small superimposed left paracentral disc protrusion; mild posterior displacement of left nerve root; and, mild to moderate bilateral neural foraminal narrowing. The following was revealed at L5-S1, L4-L5 and L3-L4 levels: mild broad-based disc bulges with mile bilateral degenerative facet joint disease; and mild bilateral symmetrical neural foraminal narrowing. See Private Medical Records Received August 2015. After a review of the evidence of record, the Board finds that throughout the period on appeal, a rating in excess of 20 percent disabling is not warranted. In this regard, ROM has been shown manifested by forward flexion to, at worst, 45 degrees. The Board recognizes that the May 2009 VA examination report shows that the Veteran reported flare-ups and that he had had an incapacitating episode causing him to miss 3 weeks of work in the past 12 months, and that the examiner did not provide a sufficient rationale as to why estimating ROM during a flare-up would require mere speculation. However, in a September 2019 VA addendum report, based on a review of both the May 2009 VA examination report as well as the medical evidence of record, another VA examiner also found that estimating any further loss in ROM based on the Veteran’s reports of flare-ups during this time period would require mere speculation. In support of this finding, the examiner stated that it was a medical principle that a sign had to be observed in order to be measured. Accordingly, absent any such observation, the examiner concluded that providing an estimate would require speculation. Apart from the September 2019 VA examiner’s conclusion that estimating further loss of ROM at the time of the May 2009 VA examination, the Board also finds the June 2014 private medical record instructive as to functional limitations caused by flare-ups during this period on appeal. That record shows that the Veteran had recently been seen in the emergency room due to a flare-up, and he currently reported continuous pain over the past three weeks. Therefore, as the Veteran’s symptoms had been continuous since the onset of his flare-up, his physician was in a position to observe his current symptomatology. However, a physical examination at that time revealed full ROM. Moreover, in his June 2010 NOD, which the Board notes was submitted within one month following the May 2009 VA examination, the Veteran reported being in constant pain which increased with normal work and daily activity movements. In this regard, the May 2009 VA examiner noted that the Veteran’s functional impairment and limited range of motion was attributable to his pain, that ROM testing results were based on when the Veteran began to experience pain, and that repetitive-use testing did not result in further loss of motion. Accordingly, based on the Veteran’s contemporaneous statement that his lumbar spine disability resulted in constant pain, in consideration that the May 2009 VA examiner based ROM findings on when the Veteran began to experience pain, and in further consideration that repetitive-use testing at that time did not result in further loss of motion, the Board finds that the ROM testing results documented in the May 2009 VA examination report accurately reflect the nature and severity of the Veteran’s lumbar spine disability at that time. The Board recognizes the representative’s December 2020 brief, in which it is asserted that September 2019 VA addendum VA examination report is inadequate. Specifically, the representative asserted that the AOJ failed to explain why the addendum examination report was not provided by examiner who conducted the May 2009 examination. Instead, the representative noted that the addendum examination report was provided by different examiner. In addition, the representative asserted that the VA examiner failed to indicate in the examination report whether evidence beyond the May 2009 examination was reviewed in estimating the degree of additional impairment. In this regard, the representative noted the Veteran’s June 2010 NOD in which he reported being in constant pain which increased during normal work and daily activity movements. Lastly, the representative asserted that the examiner failed to adequately explain why it was not possible to estimate additional functional loss during flare-ups. The representative noted that despite the Veteran’s report of flare-ups resulting in severe pain and muscle spasms that impacted his ability to working for 3 weeks, the examiner determined that it was not possible to provide an estimate because the Veteran was not observed during a flare-up or after use over a period of time. The Board finds the representative’s assertions without merit. First, the Board’s remand directives did not require the AOJ to document whether the May 2009 VA examiner was available. Instead, the Board merely requested the AOJ to obtain an addendum from the same examiner, and if that examiner was not available, to obtain an addendum from another qualified examiner. No explanation was required, and the representative does not assert that the September 2019 VA examiner, a staff physician, was not qualified to provide the requested medical opinion. Second, a review of the September 2019 VA addendum report shows that the claims file was available, and the examiner specifically noted “[a]s per documented records (PMR and C&P examination).” Accordingly, despite the representative’s assertion, the examiner clearly indicated she reviewed the Veteran’s medical records as well as the VA examination report. Finally, the Board disagrees with the examiner’s assertion that the examiner failed to adequately explain why it was not possible to estimate additional functional loss based on flare-ups at the time of the May 2009 VA examination. In this regard, the examiner clearly stated that it was a medical principal that a sign needed to be observed in order to be measured. Instead, the examiner noted information contained in the May 2009 VA examination report showed that no further functional loss was found following repetitive-use testing. Based on a lack of any further information, the examiner concluded that providing a retroactive finding, such as further loss of motion during flare-ups, would necessarily be based on speculation. Therefore, based on the cumulative medical evidence of record during this period on appeal, including the May 2009 and September 2019 VA examination reports, the June 2010 NOD as well as findings presented in the June 2014 private medical record, the Board finds that prior to July 2015, the Veteran’s lumbar spine disability has not been shown to be manifested by forward flexion limited to 30 degrees or less. The Board further notes that throughout the period on appeal, the Veteran’s lumbar spine was additionally not found manifested by ankylosis. Therefore, prior to July 29, 2015, a rating in excess of 20 percent is not warranted. The Board has also considered rating the Veteran’s lumbar spine disability pursuant to the Formula for Rating Intervertebral Disc Syndrome. In this regard, IVDS was not noted in any medical record or examination report during the period on appeal. In any event, even if the Board were to consider the Veteran’s lay statements as to incapacitating episodes, as noted above, the May 2009 VA examination report shows he reported being incapacitated for three weeks in the past 12 month period. Turning to the rating criteria under the Formula for Rating IVDS, the Veteran’s symptoms would correlate to a 20 percent rating. Therefore, rating the Veteran’s lumbar spine disability under the Formula for Rating IVDS does not provide him with a more beneficial outcome. The Board has also considered assigning higher disability ratings pursuant to 38 C.F.R. §§ 4.40 and 4.45. In this regard, the Board acknowledges the Veteran’s reports of pain and painful motion. However, the Veteran’s lumbar spine disability has been rated based on limitation of motion (i.e. functional loss) caused by pain. As such, the Board finds that the currently assigned disability rating takes into account functional limitations based on painful motion and there is no basis for the assignment of additional disability due to pain, weakness, fatigability, or incoordination. See 38 C.F.R. §§ 4.40 and 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Lastly, the Veteran has been assigned a separate 10 percent rating for left lower extremity radiculopathy effective May 29, 2009. This rating is not part of the appeal. The Board notes that throughout the period on appeal, the Veteran is shown to have denied any other neurogenic impairments, such as bowel or bladder impairment. Accordingly, the Board concludes that additional separate ratings based on associated neurogenic impairments are not warranted. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1). (Continued on the next page)   In sum, the Board concludes that the preponderance of the evidence is against the assignment of a rating in excess of 20 percent prior to July 29, 2015, and that claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lamb, 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.