Citation Nr: 21003029 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 16-33 536 DATE: January 19, 2021 ORDER A 20 percent rating for a recurrent lower back strain to include invertebral disc syndrome (IVDS) is granted prior to August 13, 2018. A rating in excess of 40 percent for a recurrent lower back strain to include IVDS from August 13, 2018 onwards is denied. An effective date prior to November 26, 2004 for service connection for a recurrent lower back strain to include IVDS is denied. FINDINGS OF FACT 1. Prior to August 13, 2018, the Veteran’s range of motion was at worst 90 degrees of flexion and a combined range of motion of 220 degrees; without muscle spasm or guarding; and without incapacitating episodes. However, the Veteran described flare-ups which cause him to function at only a “minimum level,” he is unable to lift, play with his grandkids, or sit up straight. He cannot drive for long periods of time. 2. From August 13, 2018 onwards, there is no medical or lay evidence documenting symptoms that approximate unfavorable ankylosis of the entire thoracolumbar spine or symptoms of IVDS that are characterized as causing incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 3. The earliest date of claim of record is November 26, 2004. CONCLUSIONS OF LAW 1. The criteria for a 20 percent rating for a recurrent lower back strain to include IVDS prior to August 13, 2018 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.21, 4.40, 4.45, 4.71a, Diagnostic Code 5242. 2. The criteria for a rating in excess of 40 percent for a recurrent lower back strain to include IVDS from August 13, 2018 onwards have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.21, 4.40, 4.45, 4.71a, Diagnostic Code 5242. 3. The criteria for an effective date prior to November 26, 2004 for service connection for a recurrent lower back strain to include IVDS have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service in the Army from April 1966 to April 1968. This appeal comes to the Board of Veterans’ Appeals (Board) from a July 2014 rating decision. This matter was previously remanded by the Board in November 2018 for further evidentiary development. The Board finds that there has been substantial compliance with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board’s remand directives is required under Stegall). 1. A rating in excess of 10 percent for a recurrent lower back strain to include IVDS prior to August 13, 2018 and in excess of 40 percent thereafter Legal Criteria – Increased Ratings for Spine Disabilities Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a “staged” rating is required. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA adjudicators must consider whether to assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. The Court since has extended this practice even to established ratings, not just initial ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Finally, for disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45. In DeLuca, it was held that when the pertinent diagnostic criteria provide for a rating on the basis of loss of range of motion, determinations regarding functional losses are to be “‘portray[ed]’ (38 C.F.R. § 4.40) in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.” Id. at 206. The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Moreover, the United States Court of Appeals for Veterans Claims (Court) in Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016) held that the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to the evaluation of musculoskeletal disabilities under Diagnostic Codes predicated on range of motion measurements. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability 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 provided 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 disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. 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. Note (3) provides that, in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range-of-motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range-of-motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner’s assessment that the range-of-motion is normal for that individual will be accepted. Note (4) instructs to round each range-of-motion measurement to the nearest five degrees. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire lumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Under the IVDS Rating Formula (Diagnostic Code 5243), a 10 percent disability rating is assigned with incapacitating episodes having a total duration of at least 1 week 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) provides that 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. Note (2) provides that if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment should 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. Factual Background On February 2012 VA examination the Veteran reported flare-ups of locking up since injuring his back playing football in high school. Initial range of motion (ROM) testing of the thoracolumbar spine showed forward flexion to 90 or greater degrees and a combined ROM of 240 degrees. No additional limitation of ROM was noted after repetitive-use testing and no functional loss/impairment of the thoracolumbar spine was indicated. No signs or symptoms of IVDS or ankylosis of the spine were noted. On January 2016 VA examination the Veteran reported that during flare-ups he hears a “popping sound” when he stands up and has a pain shooting through his buttocks down the back of his legs. The Veteran did not report having any functional loss or impairment. Initial ROM testing of the thoracolumbar spine showed forward flexion to 90 degrees and a combined ROM of 220 degrees. There was objective evidence of pain on weight bearing. Pain, fatigue and lack of endurance were noted to cause functional loss with repeated use over time. Pain and weakness were noted to limit functional ability during flare-ups, but the examiner did not describe this functional loss in terms of ROM explaining that the examination was not performed during a flare-up. No IVDS or ankylosis of the spine was noted. In the July 2016 substantive appeal the Veteran stated that during the January 2016 VA examination a device was not used to properly measure his thoracolumbar spine ROM and that the examiner assisted him with his movements. On August 2017 VA examination, the Veteran described flare-ups which cause him to function at only a “minimum level,” he is unable to lift, play with his grandkids, or sit up straight. He cannot drive for long periods of time. The Veteran reported functional impairment in the form of pain when he moves. Initial ROM testing of the thoracolumbar spine showed forward flexion to 90 or greater degrees and a combined ROM of 240 degrees. No additional functional loss was noted after repetitive use testing or during flare-ups. IVDS of the thoracolumbar spine that did not result in any episodes of acute signs and symptoms that required bed rest prescribed by a physician or treatment by a physician in the past 12 months was noted. There was no evidence of pain on passive ROM testing of the spine or on non-weight bearing testing of the spine. On August 2018 VA examination the Veteran reported worsening symptoms including lower back pain that is constant and dull rated as an 8/10. He further reported daily numbness, tingling and pain in both legs. The Veteran’s flare-ups were noted to occur 7 to 8 times over the past 12 months with pain rated as a 10/10 lasting 2 to 3 days on average. Functional loss/impairment was described by the Veteran as difficulty, sitting, standing and walking for prolonged periods of time. He has difficulty driving, lifting and bending at the waist. Initial ROM testing of the thoracolumbar spine showed forward flexion to 30 degrees and a combined ROM of 100 degrees. Pain was noted on weight bearing. Additional function loss after repetitive use or during flare-ups was not estimated in terms of ROM, the examiner stated they could not provide these measurements without resorting to mere speculation or without directly observing functional loss under these conditions. Guarding or muscle spasm was noted. IVDS of the thoracolumbar spine that did not result in any episodes of acute signs and symptoms that required bed rest prescribed by a physician or treatment by a physician in the past 12 months was noted. No ankylosis of thoracolumbar spine was indicated. On September 2019 VA examination the Veteran reported flare-ups that feels like “hot tingling in the back, weakness in legs.” Flare-ups occur any time after physical activity and are moderate to severe. They last from 1 to 10 days and are alleviated by rest, a warm bath, Tylenol and stretching. Functional loss/impairment was described as the inability to workout, run lift weights or stand for a long time. Initial ROM testing of the thoracolumbar spine showed forward flexion to 75 degrees and a combined ROM of 185 degrees. Additional functional loss due to lack of endurance and pain after repetitive use testing described in terms of ROM further limited forward flexion to 70 degrees and combined ROM to 180 degrees. Additional functional loss due to pain and lack of endurance after repeated use over time and during flare-ups was estimated in terms of ROM to cause forward flexion limitation to 60 degrees and a combined ROM of 135 degrees. Guarding or muscle spasm was noted. IVDS of the thoracolumbar spine that did not result in any episodes of acute signs and symptoms that required bed rest prescribed by a physician or treatment by a physician in the past 12 months was noted. A rating in excess of 10 percent prior to August 13, 2018 The Board will first consider whether the Veteran’s lower back disability symptoms met the schedular criteria for a higher rating during this period on appeal. Documented ROM testing during this appeal period did not reveal forward flexion of the lumbar spine greater than 30 degrees but not greater than 60 degrees; or, a combined range-of-motion of the thoracolumbar spine not greater than 120 degrees. The Veteran was also not noted to suffer from muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. DC 5242. Nor did the Veteran have a diagnosis of IVDS noted to cause incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. DC 5243. While the schedular criteria under the general rating formula for spine disabilities was not met the Board must also consider the impact of functional loss due to factors such as pain, after repetitive use, with weight bearing, or during flare-ups. As mentioned, on August 2017 VA examination the Veteran described flare-ups which cause him to function at only a “minimum level,” he is unable to lift, play with his grandkids, or sit up straight. He cannot drive for long periods of time. The Veteran reported functional impairment in the form of pain when he moves. The Board finds that, when considering this additional functional loss during flare-ups, the criteria contemplated by a higher 20 percent rating, but no higher, are met prior to August 13, 2018. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2019); DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Correia v. McDonald, 28 Vet. App. 158 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). A rating in excess of 40 percent from August 13, 2018 onwards Under the general rating formula for spine disabilities, a 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. There is no medical or lay evidence documenting symptoms that approximate unfavorable ankylosis of the entire thoracolumbar spine during this period on appeal. Alternatively, the Veteran’s IVDS was never characterized as causing incapacitating episodes having a total duration of at least 6 weeks during the past 12 months which would warrant a higher 60 percent rating under DC 5243. The Board has also considered the impact of functional loss on the Veteran’s range of motion of the thoracolumbar spine during this period. Although, VA examiners found functional loss due to factors such as pain and lack of endurance after repeated use and during flare-ups, the totality of the evidence does not suggest that range of motion would change to the degree required for a higher rating (i.e. symptoms approximating unfavorable ankylosis of the entire thoracolumbar spine). See 38 C.F.R. § 4.71, DC 5237-5242; 38 C.F.R. §§ 4.40, 4.45, 4.59 (2019); DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Correia v. McDonald, 28 Vet. App. 158 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Rather, the Board finds that the Veteran’s reported functional loss/impairment in the form of an inability to workout, run lift weights or stand for a long time are adequately encompassed by the assigned 40 percent rating for limitation of forward flexion of the thoracolumbar spine. In sum, a rating in excess of 40 for the Veteran’s lower back disability from August 13, 2018 onwards is not warranted. 2. Entitlement to an effective date prior to November 26, 2004 for the grant of service connection for residuals of a recurrent lower back strain with IVDS. Legal Criteria Generally, the effective date for the grant of service connection will be the day following separation from active service or the date entitlement arose, if the claim is received within one year after discharge from service. Otherwise, for an award based on an original claim, claim reopened after a final disallowance, or claim for an increased rating, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Factual Background & Analysis Here, the Veteran filed a form VA 21-526 Application for Compensation or Pension claiming service connection for a lower back disability that was received on November 26, 2004. There are no formal or informal claims of record received prior to that date. Accordingly, the currently assigned effective date of November 26, 2004 is the earliest possible effective date available under applicable laws and regulations. 38 U.S.C. § 5100; 38 C.F.R. § 3.400. The claim for an earlier effective date must be denied. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kyle McKone 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.