Citation Nr: 21002141 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 14-21 952 DATE: January 12, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for degenerative joint disease of the lumbar spine prior to May 30, 2013 is denied. Entitlement to a disability rating in excess of 40 percent for degenerative joint disease of the lumbar spine beginning May 30, 2013 is denied. Entitlement to an extended temporary total rating under 38 C.F.R. § 4.30 for convalescence for the period from September 1, 2013 to February 19, 2014 is denied. Entitlement to an extended temporary total rating under 38 C.F.R. § 4.30 for convalescence for the period past April 1, 2014 is denied. FINDINGS OF FACT 1. Prior to September 1, 2013 it was not factually ascertainable that the Veteran’s degenerative joint disease of the lumbar spine was manifested by forward flexion limited to 30 degrees or less; from that date, the condition was not manifested by unfavorable ankylosis of the thoracolumbar spine or incapacitating episodes of intervertebral disc syndrome (IVDS). 2. The Veteran did not require more than three months of convalescence following his May 30, 2013 lumbar spine surgery; moreover, the evidence is against a finding that he exhibited severe post-operative residuals at any point from September 1, 2013. 3. The Veteran did not require more than one month of convalescence following his February 20, 2014 lumbar spine surgery; moreover, the evidence is against a finding that he exhibited severe post-operative residuals at any point from August 1, 2014. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for degenerative joint disease of the lumbar spine prior to May 30, 2013, and in excess of 40 percent thereafter, are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.71a, Diagnostic Code 5242. 2. The criteria for an extended temporary total rating under 38 C.F.R. § 4.30 for convalescence for the period from September 1, 2013 to February 19, 2014 is denied. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.30. 3. The criteria for an extended temporary total rating under 38 C.F.R. § 4.30 for convalescence for the period past April 1, 2014 is denied. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.30. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1986 to September 1995. This matter was last before the Board May 2020, whereupon it was remanded to the Agency of Original Jurisdiction (AOJ) for further development of the record. Following the issuance of an October 2020 supplemental statement of the case continuing the denial of the claimed benefits, the case was returned to the Board for its adjudication. As a reminder, the Veteran testified at a June 2017 hearing before the undersigned Veterans Law Judge; a copy of the transcript of the hearing is of record. Moreover, the Board refers to its prior discussion in the May 2020 remand as to why the question of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is not before the Board at this time. Rice v. Shinseki, 22 Vet. App. 447 (2009). Increased Ratings Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple (“staged”) ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In determining the appropriate rating for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Factors of joint disability include increased or limited motion, weakened movement, excess fatigability, incoordination, and painful movement, including during flare-ups and after repeated use. DeLuca v. Brown, 8 Vet. App. 202, 206-08 (1995); 38 C.F.R. § 4.45. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40. Additionally, “pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system.” Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Pain in a particular joint may result in functional loss, but only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. Id.; 38 C.F.R. § 4.40. Under 38 C.F.R. § 4.59, painful joints are entitled to at least the minimum compensable rating for the joint. 1. Degenerative Joint Disease of the Lumbar Spine The Veteran seeks an increased rating for his service-connected degenerative joint disease of the lumbar spine and filed his claim for such benefits on August 29, 2013. The Board notes that for claims for an increase in a service connected disability, if an increase in disability occurred within one year prior to the claim, the increase is effective as of the date the increase was “factually ascertainable.” U.S.C. 5110(b)(2); 38 C.F.R. § 3.400(o); VAOPGCPREC 12-98 (1998). Therefore, the relevant period of analysis extends back to the one year prior to the date of the claim, that is, August 29, 2012. During this period, the Veteran was in receipt of a 20 percent rating for the lumbar spine condition prior to May 30, 2013, whereupon he was awarded a temporary 100 percent rating for convalescence following surgery. That 100 percent rating remained effective until September 1, 2013, at which point the Veteran was awarded a 40 percent rating for the lumbar spine condition. The 40 percent rating has been in effect since that date except for the period from February 20, 2014 to March 31, 2014 when the Veteran was awarded another temporary 100 percent rating for convalescence following a second surgery. The Veteran seeks increased ratings for the entire period of the appeal, to include an extension of the 100 percent temporary ratings. Spinal conditions are evaluated under either the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Formula for Rating IVDS), whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. §§ 4.25, 4.71a, Diagnostic Code 5242. The General Rating Formula provides for a 20 percent rating with 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 assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. For VA compensation purposes, normal forward flexion of the thoracolumbar 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 thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, General Rating Formula, Note (2); see also 38 C.F.R. § 4.71a, Plate V. According to the Formula for Rating IVDS, a 20 percent rating requires evidence of incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past twelve months; a 40 percent rating requires evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating requires evidence of 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. 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. Id. at Note (1). If IVDS is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment will be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. Id. at Note (2). As stated above, the Veteran is also in receipt of temporary 100 percent evaluations for periods of time following separate spinal surgeries that occurred during the pendency of the appeal. A temporary 100 percent evaluation will be assigned for convalescence without regard to other provisions of the Rating Schedule when it is established by report at hospital discharge (regular discharge or release to non-bed care) or outpatient release that entitlement is warranted, effective the date of hospital admission or outpatient treatment and continuing for a period of 1, 2, or 3 months from the first day of the month following such hospital discharge or outpatient release. A total rating will normally only be assigned for a period no longer than three months, but extensions may be granted up to three months beyond the initial period. Specifically, the Veteran must demonstrate that treatment of his service-connected disability resulted in (1) surgery necessitating at least one month of convalescence; (2) surgery with severe post-operative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30. “Convalescence” is defined as “the stage of recovery following an attack of disease, a surgical operation, or an injury.” A “recovery” is “the act of regaining or returning toward a normal or healthy state. See Felden v. West, 11 Vet. App. 427, 430 (1998). The purpose of a temporary total evaluation is to aid a claimant during the immediate post-surgical period when he or she may have incompletely healed wounds or may be wheelchair-bound, or when there may be similar circumstances indicative of transient incapacitation associated with recuperation from the immediate effects of an operation. The determination of whether convalescence was necessary after a surgical procedure is a finding of fact and must be established by report at hospital discharge or outpatient release. Id. A review of available private medical records shows that the Veteran was experiencing significant lumbar spine pain leading up to his first back surgery in May 2013. A January 2013 MRI examination revealed degenerative changes throughout the lumbar spine to include a disc bulge causing severe narrowing of the left lateral recess and displacement of the descending left S1 nerve root. The Veteran was referred to a neurologist by his treating VA physician, who evaluated the Veteran in February 2013; during that evaluation the Veteran reported experiencing aching pain radiating in the right lower extremity, and the impression was a lumbosacral disc herniation. A March 2013 operative report shows that the Veteran received an epidural injection to relieve extreme low back pain that radiated to his right lower extremity. A correspondence from a Dr. J.L. dated two weeks after the epidural injection indicates that the Veteran did not experience relief from this epidural injection and sought surgical intervention for his lumbar spine condition. Thereafter, an operative report dated May 30, 2013 indicates that the Veteran underwent a lumbar laminectomy to alleviate pain stemming from lumbar stenosis and lumbar disk herniation. A statement dated May 29, 2013, so the day prior to surgery, indicates that the Veteran’s treating physician anticipated that the Veteran would require six to eight weeks for recovery following the surgery. A June 2013 outpatient record reflects that the Veteran was reporting that most of his symptomatology had subsided a month after his surgery; he was scheduled for a follow-up evaluation six weeks later. An October 2013 note shows that the Veteran was not cleared to return to normal activities, and instead indicates that his treating physician intended to schedule him for a second surgery. Thereafter, on a February 2014 note the Veteran’s treating physician indicated that the Veteran never healed from his first surgery and was scheduled for a secondary surgery on February 20, 2014 to alleviate the symptoms of his recurrent lumbar spine condition. A discharge report prepared after the Veteran was discharged on February 24, 2014 following the February 20, 2014 surgery shows that the Veteran underwent spinal fusion surgery; the impression was recurrent lumbar disk herniation with low back pain and lower extremity weakness and pain affecting the Veteran’s mobility. A March 2014 outpatient record reflects that the Veteran was reporting that he was still experiencing right lower extremity pain but that most of his symptoms had otherwise improved. A review of available VA medical records confirms that the Veteran was receiving treatment for lower back pain through VA for the entirety of the appeal period. Records dating from 2013 show that the Veteran underwent regular physical therapy sessions at his local VA medical center. A June 2014 MRI examination following the February 2014 surgery revealed a mild disc bulge at L3-L4, stable disc protrusion with moderate stenosis at L4-L5, and no protrusion, bulge or stenosis at L5-S1. More recently, an June 2015 outpatient note reflects that the Veteran was involved in a motor vehicle accident and experienced worsening low back pain radiating into his right side. He reported that he could not walk more than one half of a city block due to low back pain. Subsequent VA medical records show continued treatment for low back pain, to include recurring physical therapy; however, there are no more contemporary medical records showing specific complaints of and treatment for low back symptomatology. During the appeal period, the Veteran was first afforded a VA examination to evaluate the severity of his lumbar spine condition in April 2014, during which he reported that he was experiencing worsening low back pain resulting in a decrease in mobility and an inability to stand or sit for long periods of time as well as chronic right groin pain. The Veteran also endorsed experiencing flare-ups of symptomatology but was unable to describe the extent of these flare-ups for the examiner. Range of motion testing revealed the following: forward flexion restricted to 30 degrees, with painful motion beginning at 20 degrees; a complete lack of extension; bilateral lateral flexion restricted to 10 degrees, with painful motion exhibited with any movement; and bilateral lateral rotation restricted to 10 degrees, with painful motion again exhibited with any movement. There was no additional loss of range of motion following repetitive use testing, but the examiner did find that the Veteran would experience less movement than normal as well as pain on movement due to the low back condition. Muscle strength testing did not reveal any abnormalities. Sensory testing revealed no abnormalities other than a stock glove decrease in sensation from the ankles distally; however, the examiner did not endorse a diagnosis of radiculopathy in either lower extremity. Furthermore, the examiner did not find any evidence of IVDS. In summation, the examiner found that the lumbar spine condition wholly precluded the Veteran’s ability to work. The Veteran was next afforded a VA examination in October 2018, during which he reported that he experienced chronic back pain which prevented him from lying flat and significantly interrupted his ability to sleep on a daily basis. He also endorsed experiencing flare-ups of additional back pain that made it impossible for him to move. The examiner stated that they were unable to do range of motion testing due to the Veteran’s severe back pain throughout the lumbar spine. It was noted, however, that the Veteran exhibited pain with weight-bearing as well as localized tenderness on palpation of the joint. The examiner also found that the Veteran experienced additional functional impairment following repeated use and/or during a flare-up in the form of additional pain, weakness and lack of endurance, but was unwilling to estimate the degree of increased loss of range of motion attributable to this additional functional impairment. Muscle strength testing revealed loss of muscle strength on both the right and left lower extremities, left worse than right. The examiner denied the presence of lower extremity radiculopathy, ankylosis, or IVDS. In summation, it was the examiner’s impression that the lumbar spine condition prevented the Veteran from standing, walking, bending, climbing, or squatting due to severe back pain. Pursuant to the Board’s May 2020 remand instructions, the Veteran was scheduled for a new VA back examination in October 2020 in order to obtain accurate range of motion testing results. He reported experiencing constant low back pain radiating down his right leg that contributed to numbness and tingling in his right lower extremity. Although he did not endorse experiencing any flare-ups of additional pain, the Veteran did state that his lumbar spine condition caused him difficulty with prolonged walking, sitting, laying and lifting. Range of motion testing revealed the following: forward flexion restricted to 45 degrees, extension restricted to 5 degrees, bilateral lateral flexion restricted to 10 degrees, right lateral rotation restricted to 10 degrees, and left lateral rotation restricted to 15 degrees. Pain was noted throughout the lumbar spine and was also noted with weight-bearing; however, the examiner denied any evidence of localized tenderness with palpation. The Veteran was unwilling to attempt repeated use testing due to fear of pain, but the examiner did estimate that range of motion would be reduced by an additional five degrees throughout the lumbar spine after repeated use. Muscle strength testing revealed a slight loss of muscle strength on the right side with no loss on the left. Sensory testing revealed moderate radiculopathy on the right lower extremity and no radiculopathy or other neurological symptomatology on the left lower extremity. In summation, the examiner found that the lumbar spine condition would impair occupational functioning in the form of interference with walking, sitting and lifting for prolonged periods of time. Upon review of the claim file, the Board first finds that a rating in excess of 20 percent for a low back condition is not warranted for the period from August 29, 2012 to May 29, 2013. The later 40 percent rating was assigned on the basis of range of motion testing results from the April 2014 VA examination, which showed flexion reduced to 30 degrees. Prior to this date, there is no indication from the record that the Veteran was exhibiting any of the specific symptomatology which would warrant the higher 40 percent rating. While the AOJ elected to extend the effective date for this demonstrated increase in severity back to the first day following the three-month period of convalescence, that is, September 1, 2013, the Board will not further extend that effective date to the period prior to the Veteran’s surgery, as it was not “factually ascertainable” that the Veteran was exhibiting flexion reduced to 30 degrees during this period of time, or any other symptomatology which would warrant an increase to 40 percent. Accordingly, the Board confirms that a 20 percent rating, but no more, is warranted for the low back condition for the period from August 29, 2012 to May 29, 2013. The Board also find that the Veteran is not entitled to an extension of the temporary 100 percent rating for convalescence following surgery for the period from May 30, 2013 to August 31, 2013. To begin, the Board notes that the Veteran was already found to require a three-month convalescence period following his first spinal surgery on May 30, 2013, which began tolling the first day of the following month (June 1) and continue for three full months thereafter, so through August 2013. As detailed above, extensions beyond the typical three-month period convalescence are permitted if the evidence demonstrates that the Veteran required additional convalescence or if he experienced severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of major joint or more, application of a body case, or necessity for house confinement of confinement ot a wheel chair or crutches. 38 C.F.R. § 4.30. There is no indication from the evidence that the Veteran’s May 30, 2013 surgery necessitated more than three months of convalescence; indeed, a May 2013 note dating one day prior to the surgery indicates that the Veteran’s treating physician anticipated that the Veteran would require six to eight weeks for recovery following the surgery. Moreover, the Board also does not find that any of the other indicia suggesting that a convalescence period beyond three months was necessary are shown by the record. While the Board acknowledges that a February 2014 note from the Veteran’s treating physician detailed that the Veteran’s back “never healed” from the first operation, it is unclear what the physician’s statement means in this context. Certainly, there is no evidence that the Veteran had unhealed surgical wounds in February 2014. It is Board’s impression that the Veteran’s physician statement reflects that the May 30, 2013 surgery did not have the therapeutic impact that was intended, as opposed to indicating that any lingering surgical wounds were not healed. This is corroborated by the fact that the Veteran underwent surgery later in the month of February 2014 and his operative report does not reflect any history of unhealed surgical wounds. Furthermore, the Board highlights the June 2013 follow-up evaluation wherein no such post-operative surgical wounds were reported as not having healed. Accordingly, the Board finds that the evidence is against a determination that the Veteran required more than three months of convalescence following his back surgery on May 30, 2013. Similarly, the Board finds that the Veteran is not entitled to an extension of the second temporary 100 percent rating for convalescence following surgery for the period from February 20, 2014 to March 31, 2014. To be clear, this convalescence period represents one month beginning March 1, 2014, with the resumption of the prior 40 percent rating beginning the following month on April 1, 2014. There is no indication from the evidence that the Veteran’s February 20, 2014 surgery necessitated more than one month of convalescence. During a follow-up evaluation in March 2014, the Veteran was noted to be recovering well from his surgery and was prescribed physical therapy for a period of four to six weeks. VA medical records show that the Veteran attended physical therapy following this evaluation for a period much longer than six weeks, but none of those records suggest that the Veteran’s period of convalescence extended beyond the month for which he was awarded the temporary 100 percent rating for the month of March 2014. The Veteran has submitted no additional objective medical evidence which would suggest that his February 2014 surgery necessitated more than one month of convalescence. The Board also highlights that there is no evidence that the Veteran experienced any of the severe post-operative residuals which would alternatively warrant an extension of the currently assigned one-month convalescence period following the February 2014 back surgery. Accordingly, the Board finds that the evidence is against a determination that the Veteran required more than one month of convalescence following his back surgery on February 20, 2014. Finally, the Board concludes that a rating in excess of 40 percent is not warranted for either the period from September 1, 2013 to February 19, 2014 or for the period from April 1, 2014. In consideration of the appeal period from September 1, 2013 to February 19, 2014, the Board has already noted that the AOJ elected to extend back its finding that the Veteran exhibited 30 degrees of flexion to September 1, 2013 even though it was first noted during the April 2014 VA examination. While the Board will not disturb the 40 percent rating, it is noted that the evidence of record does not strictly support a 40 percent rating for the period from September 1, 2013 to February 19, 2014, let alone a rating in excess of that 40 percent rating. There is no indication that the Veteran exhibited ankylosis or incapacitating episodes of IVDS during this period, which are the only avenues available for a rating in excess of 40 percent under the applicable criteria on a schedular basis. Similarly, although the Veteran clearly continued to exhibit restricted flexion following the April 2014 examination, thus warranting the 40 percent rating for the period from April 1, 2014, there is no indication that the Veteran exhibited ankylosis or IVDS during this period, to include on both the October 2018 and October 2020 VA back examinations. The Board has considered the lay evidence of record, to include the Veteran’s statements during the June 2017 hearing, but the Veteran’s description of his symptomatology does not suggest that he is entitled to a rating in excess of the 40 percent already in effect for the periods from September 1, 2013 to February 19, 2014, and from April 1, 2014. Specifically, while the Veteran endorsed experiencing flare-ups of additional pain on the October 2018 examination, there is no suggestion from his lay testimony or the objective medical evidence of that this additional pain would equate to unfavorable ankylosis of the entire spine, or IVDS resulting in incapacitating episodes having a total duration of at least 6 weeks during the preceding 12 months, either of which would need to be shown to warrant a rating in excess of 40 percent under the applicable criteria. Accordingly, the Board finds that it has satisfied the requirements of Sharp v. Shinseki, 29 Vet. App. 26 (2017) and Correia v. McDonald, 28 Vet. App. 158 (2016), inasmuch as the evidence of record does not indicate that a higher rating may be warranted on the basis of the legal requirements outlined in these two cases. Therefore, the Board finds that the assigned 40 percent rating adequately contemplates the functional impairment resulting from the Veteran’s service-connected lumbar spine condition, and that a higher rating must be denied for the period from September 1, 2013 to February 19, 2014, and from April 1, 2014. The Board notes that the evidence of record does not show additional objective neurological abnormalities associated with the Veteran’s lumbar spine condition other than the assigned ratings for lower extremity radiculopathy. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). Accordingly, in light of the fact that the Veteran has not raised any other issues that are associated with the low back condition increased rating claim, nor have any other issues been reasonably raised by the record, the Board will not proceed to consider any alternative form of entitlement to this particular benefit. Doucette v. Shulkin, 28 Vet. App. 366 (2017). A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Christopher M. Collins, 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.