Citation Nr: 21003573 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 09-42 249 DATE: January 22, 2021 ORDER Entitlement to an initial rating of 20 percent, but no higher, for degenerative joint disease at L3-5, prior to March 25, 2016, is granted. Entitlement to a rating of 40 percent, but no higher, for degenerative joint disease at L3-5, from March 25, 2016 to March 13, 2020, is granted. Entitlement to a rating in excess of 40 percent for degenerative joint disease at L3-5, from March 14, 2020, is denied. FINDINGS OF FACT 1. Prior to March 25, 2016, the Veteran’s back condition was manifested by decreased range of motion that more closely approximated a 20 percent rating. 2. From March 25, 2016 to March 13, 2020, the Veteran’s back condition was manifested by decreased range of motion that more closely approximated a 40 percent rating. 3. From March 14, 2020, the Veteran’s back condition was not manifested by ankylosis. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 20 percent, but no higher, for degenerative joint disease at L3-5, prior to March 25, 2016, have been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 2. The criteria for an initial rating of 40 percent, but no higher, for degenerative joint disease at L3-5, from March 25, 2016 to March 13, 2020, have been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 3. The criteria for an initial rating in excess of 40 percent for degenerative joint disease at L3-5, from March 14, 2020, have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1985 to October 2008. The Veteran appealed a December 2008 rating decision by the Agency of Original Jurisdiction (AOJ). The Veteran was initially awarded a noncompensable rating for her back condition. See December 2008 rating decision. Throughout the appellate period, the Veteran’s rating for her back condition would become staged at 10 percent from November 1, 2008, 20 percent from March 25, 2016, and 40 percent from March 14, 2020. See July 2010, March 2016, and June 2020 rating decisions. In February 2012, July 2017, October 2017, and September 2019, the Board of Veterans’ Appeals (Board) remanded the Veteran’s claim to the AOJ for further action consistent with the Board’s remand directives. The claim is back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). When, as here, a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where, as here, the question to consider 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 are required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. For disabilities evaluated based on limitation of motion, the Department of Veterans Affairs (VA) is required to apply the provisions of Sections 4.40 and 4.45 pertaining to functional impairment. 38 C.F.R. §§ 4.40, 4.45. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain during flare-ups and after repetitive use over time. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). The Board notes that 38 C.F.R. § 4.59, entitled “Painful motion,” states, in pertinent part, “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.” In Burton v. Shinseki, the Court stated that the scope of § 4.59 is not limited to arthritis claims. 25 Vet. App. 1, 5 (2011). When painful motion is present the minimum compensable rating for the joint should be assigned. Sowers v. McDonald, 27 Vet. App. 472, 479-81 (2016). VA rated the Veteran’s lumbar condition under 38 C.F.R. § 4.71a, Diagnostic Code 5242. All spinal disabilities are evaluated under the General Rating Formula for Diseases and Injuries of the Spine. If the Veteran has Intervertebral Disc Syndrome (IVDS), the Veteran may also be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Ultimately, the Veteran’s disability rating will depend on which diagnostic code results in the higher evaluation. Here, the Veteran has had IVDS. See March 2016 VA examination report. Therefore, the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is not applicable. The pertinent criteria under the General Rating Formula for Diseases and Injuries of the Spine are as follows: Unfavorable ankylosis of the entire spine - 100 percent disabling. Unfavorable ankylosis of the entire thoracolumbar spine - 50 percent disabling. Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine - 40 percent disabling. Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine - 30 percent disabling. 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 - 20 percent disabling. Importantly, VA is to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Code 5235 to 5242, Note (1). Here, the Veteran does not have objective neurologic abnormalities that rise to compensable levels. The Veteran’s service-connected back condition has associated radiculopathy; the Board will address that rating in a separate section below. 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 normal combined range of motion of the thoracolumbar spine is 240 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 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. 38 C.F.R. § 4.71a, Diagnostic Code 5235 to 5242, Note (2). Under the IVDS Formula a 10 percent rating is warranted for 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 warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. For purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Although the Veteran has had IVDS, the Veteran has not had any episodes that required bed rest prescribed by a physician in the last 12 months. Therefore, it would not be advantageous to rate the Veteran under Diagnostic Code 5243. The Board notes that pursuant to Note (1) of the General Formula, VA is to evaluate any associated objective neurologic abnormalities separately under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, Diagnostic Code 5242, Note (1). Determining whether separate ratings should be awarded for objective neurological complications is part and parcel of an increased rating claim for a lumbar spine disability. However, the Veteran is already service-connected for left and right lower extremity radiculopathy associated with her back condition from April 8, 2016 and has not made any disagreement with this rating. Additionally, the evidence does not demonstrate radicular symptoms prior to April 8, 2016. Therefore, the issue regarding the rating for the Veteran’s radiculopathy is not before the Board. 1. Prior to March 25, 2016 The February 2012 Board decision remanded the issue for a new VA examination since the May 2010 VA examiner did not note at what point limitation of motion was specifically due to pain. Therefore, the Board finds the May 2010 VA examination report is inadequate for rating purposes and does not adequately reflect the severity of the Veteran’s back condition. The March 2016 VA examination report noted no flare-ups and forward flexion to 60 degrees. This is congruent with a rating of 20 percent. It is likely the Veteran had such severe symptoms prior to the March 2016 VA examination. Since there is not an adequate VA examination prior to the March 2016 VA examination, the Board finds the Veteran is entitled to an initial 20 percent rating prior to March 25, 2016. However, the evidence does not demonstrate limitation of motion to 30 degrees or less, or the existence of ankylosis to warrant a higher rating. The Veteran has not been found to require consistent use of an assistive device. Although the Veteran’s back condition impacts her ability to walk, sit, stand, lift, and bend, the range of motion measurements during the appellate period are greater than 30 degrees. The Board finds the evidence of record more closely approximates the criteria for a 20 percent rating for the entire period prior to March 25, 2016. 2. From March 25, 2016 to March 13, 2020 The October 2017 and September 2019 Board decisions found the July 2016 and April 2018 VA examinations did not fully comport with the requirements of Correia and Sharp. Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). As such, the Board finds the July 2016 and April 2018 VA examinations do not properly reflect the severity of the Veteran’s back condition. The March 2020 VA examination report noted difficulty walking and standing for long periods, daily severe flare-ups, forward flexion to 10 degrees, forward flexion to 5 degrees during flare-ups, no muscle atrophy, and no ankylosis. Since the March 2020 VA examination appropriately accounts for the Veteran’s flare-ups, and it is likely the Veteran possessed such severe symptoms prior to the March 2020 VA examination, entitlement to a 40 percent rating is appropriate prior to March 14, 2020. As noted above, flare-ups were noted in the July 2016 and April 2018 VA examination reports. Therefore, it is possible the Veteran had such severe symptoms during flare-ups prior to the July 2016 VA examination. Although, the March 2016 VA examination report did not note flare-ups, the VA examiner noted pain is made worse by driving and is weather sensitive. This alludes to possible flare-ups at that time while driving and during certain types of weather. The Veteran filed a new VA Form 21-526EZ received on April 8, 2016 seeking an increased rating for her back condition. Therefore, the Veteran alleges an increase in severity to her back condition from that point. Furthermore, it is likely the Veteran possessed her increase in symptoms prior to her filing of the increased rating claim. Therefore, the Board finds the Veteran is entitled to a 40 percent rating from March 25, 2016. Overall, the Board finds the Veteran’s back condition more closely approximates that of a 40 percent rating from March 25, 2016 to March 13, 2020. A higher rating is not warrant since the Veteran has not been found to have ankylosis. 3. From March 14, 2020 As noted above, a higher than 40 percent rating for the Veteran’s back condition would require a finding of ankylosis. However, the medical evidence of record has not found the Veteran to have ankylosis. Therefore, a higher than 40 percent rating is not warranted from March 14, 2020. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Zheng, 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.