Citation Nr: 21003630 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 17-01 181 DATE: January 22, 2021 ORDER For the appellate period prior to June 23, 2020, an initial 20 percent rating, but not higher, for a lumbar spine disability, is granted. Beginning June 23, 2020, a rating higher than 40 percent for a lumbar spine disability is denied. FINDINGS OF FACT 1. Prior to June 23, 2020, the lumbar spine disability more nearly approximates forward flexion of the thoracolumbar spine to 40 degrees at worst, without evidence of favorable ankylosis of the entire thoracolumbar spine. 2. Beginning June 23, 2020, the lumbar spine disability more nearly approximates forward flexion of the thoracolumbar spine to 30 degrees at worst, without evidence of unfavorable ankylosis of the entire thoracolumbar spine or intervertebral disc syndrome (IVDS) with incapacitating episodes of at least six weeks during any 12-months period. 3. A diagnosis of IVDS is not demonstrated and any reports of having “incapacitating episodes” are not shown to result in prescribed bed rest by a physician. CONCLUSIONS OF LAW 1. Prior to June 23, 2020, the criteria for an initial 20 percent rating, but not higher, for a lumbar spine disability are approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2019). 2. Beginning June 23, 2020, the criteria for a rating higher than 40 percent for a lumbar spine disability are not met or approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 2003 to March 2016. Procedural History In October 2015, VA received the Veteran’s original claim for compensation for a back disability. In December 2015, the Veteran underwent a VA back examination and in a May 2016 rating decision, the RO granted service connection for a lumbar spine disability and assigned a noncompensable rating. In the same rating decision, the RO also granted a service connection for a left hip disability and assigned it a noncompensable rating. However, in a July 2016 rating decision, the RO combined both the left hip and back disabilities into one disability and assigned a 10 percent rating for multiple noncompensable disabilities. The Veteran submitted a timely October 2016 notice of disagreement, in which he only disagreed with the assigned rating for the back disability. The RO then issued an October 2016 statement of the case only adjudicating entitlement to an initial rating higher than 10 percent for a back disability, ignoring the fact that the most recent codesheet combined both the back and left hip disabilities. The Veteran timely perfected his appeal in January 2017. In February 2020, the Veteran testified in a videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. Subsequently, in March 2020, the Board remanded the claim to provide the Veteran with VA examinations for both the back and left hip disabilities. Thereafter, in a September 2020 rating decision, the RO increased the Veteran’s back disability rating to 40 percent effective June 23, 2020, the date of the VA examination. In addition, the RO granted a separate 10 percent rating for a left hip disability as well as two other noncompensable ratings for the left hip disability. Since the Veteran only appealed the initial rating for the back disability and is in receipt of separate ratings for a left hip disability, the Board finds that the issue on appeal is entitlement to an initial compensable rating for a back disability prior to June 23, 2020, and higher than 40 percent thereafter. Lumbar Spine Disability – Rating Criteria Disability evaluations are determined by comparing a veteran’s present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran’s condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Where the veteran is appealing the rating for an already established service-connected condition, her present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The General Rating Formula for Diseases and Injuries 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. 38 C.F.R. § 4.71a. 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 assigned for forward flexion of the thoracolumbar spine to 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 entire spine. Intervertebral disc syndrome can alternatively be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula). Under the IVDS Formula, a 10 percent rating requires incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A rating of 20 percent is warranted for incapacitating episodes with a total duration of at least two weeks but less than four weeks during the past 12 months. A rating of 40 percent is warranted for incapacitating episodes with a total duration of at least four weeks but less than six weeks during the past 12 months. A maximum rating of 60 percent is warranted for incapacitating episodes with a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, IVDS Formula. For these purposes, 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). DC 5003 provides that when limitation of motion is noncompensable under the appropriate code or codes, a rating of 10 percent may be applied to each major joint or group of minor joints affected by limitation of motion. Such limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. If there is no limitation of motion, a 10 percent rating will be assigned where there is x-ray evidence of involvement of two or more major joints or minor joint groups, and a 20 percent rating will be assigned where there is such involvement along with occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, DC 5003. The lumbar vertebrae are considered a group of minor joints, ratable on a parity with major joints for these purposes. See 38 C.F.R. § 4.45(f). Here, subsequent to June 23, 2020, DC 5003 is not applicable, since the Veteran’s lumbar spine limitation of motion is compensable; however, it is up for consideration for the rating period on appeal prior to June 23, 2020. Lumbar Spine Disability – Rating Analysis Prior to June 23, 2020 In December 2015, prior to discharge from active duty service, the Veteran underwent a back examination, at which time the examiner diagnosed degenerative arthritis of the spine. The Veteran reported having tightness in the morning and when sitting for long periods of time. He reported having flare-ups that were described as pain and stiffness in the morning. The Veteran noted that flights also caused pain and stiffness. Functional loss/impairment was described as the back not feeling as strong or sturdy and being very cautious about his back. On physical examination, range of motion of the lumbar spine was normal with forward flexion to 90 degrees; extension to 30 degrees; lateral flexion to 30 degrees, bilaterally; and, lateral rotation to 30 degrees, bilaterally. Pain was not noted on examination and there was no objective evidence of localized tenderness or pain on palpation of the joint or associated tissue. The Veteran was able to perform repetitive-use testing with no additional loss of function or range of motion. The examiner noted that the examination reported was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with repetitive use over time and/or during flare-ups. Though, the examiner indicated that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time and that it was not possible to determine such impact during flare-ups without resorting to mere speculation. There was no evidence of guarding or muscle spasm. Muscle strength testing was normal (5/5) throughout with the exception of the right ankle dorsiflexion that showed active movement against some resistance (4/5). There was no evidence of muscle atrophy. Reflex and sensory examinations were normal throughout. Straight leg raising test was negative, bilaterally. There was no radicular pain or any other signs or symptoms due to radiculopathy. There was no ankylosis or IVDS. The Veteran used no assistive devices and there were no other pertinent physical findings, complications, conditions, signs, or symptoms related to the back disability. X-rays showed arthritis of the lumbar spine. The examiner noted that the condition did not impact the Veteran’s ability to work. In October 2016 correspondence, the Veteran stated that his back disability warranted a 20 percent rating. He indicated that his back constantly bothered him and recent September 2016 MRI showed degenerative changes of the lumbar spine at L4-5 and L5-S1. The Veteran stated that this showed he had arthritis in two major joints. He added that this caused him constant discomfort that at times was incapacitating. The MRI submitted by the Veteran showed degenerative change of the lumbar spine at L4-5 and L5-S1 without central spinal stenosis or neural foraminal narrowing. In January 2017 correspondence, the Veteran noted that he continued to have back pain and saw an acupuncturist and physical therapist to help dealing with incapacitating pain. According to December 2018 VA treatment records, the Veteran reinjured his back and had incapacitating pain especially on the left side. A radiology report showed very minimal generalized degenerative changes of the lumbar spine in comparison to the previous 2016 study. During the February 2020 Board hearing, the Veteran testified that his back was worse than the assigned noncompensable rating. He noted that he received injections as well, which provided temporary relief. He added that he had constant pain and stiffness. According to May 2020 VA treatment records, the Veteran complained of low back pain worse on the right side. The pain slowly progressed throughout the years and was occasionally sharp without any neurological features. The average pain intensity was 5 out of 10, which increased with exercise. The medical professional noted that the Veteran was an employed pilot that ran and worked out. He tried extensive physical therapy, acupuncture, non-opioid medications, TENS unit, and injections. Range of motion of the lumbar spine was within normal limits with mild tenderness to palpation of the paraspinal muscles and mild discomfort with facet joint loading. There was no tenderness to palpation of the SI joints. On review, the Board resolves all doubt in the Veteran’s favor in finding that a 20 percent rating is warranted during this rating period on appeal. In so finding, the Board notes that range of motion of the lumbar spine was normal during this initial rating period and that the December 2015 examiner did not estimate any additional limitation of motion during flare-ups. However, given the reported flare-ups and the June 2020 examiner’s estimation that during flare-ups range of motion of the lumbar spine would decrease by 50 degrees, the Board finds that forward flexion of 40 degrees is approximated. As discussed above, forward flexion greater than 30 degrees but not greater than 60 degrees warrants a 20 percent rating. Nonetheless, a rating higher than 20 percent is not warranted for this rating period. Specifically, even taking into consideration the Veteran’s competent and credible reports of flare-ups and functional loss after repetitive use over time, limitation of flexion to 30 degrees is still not met or approximated. As discussed, range of motion of the lumbar spine was normal and even using the later estimation of a 50 degrees reduction in forward flexion during flare-ups, this would not more nearly approximate forward flexion to 30 degrees, which is required by the rating criteria for a 40 percent disability rating. The Board concludes that the currently assigned 20 percent rating already contemplates the additional loss due to pain and other DeLuca factors after repetitive use and/or during flareups. See 38 C.F.R. §§ 4.40, 4.45. A higher rating under the General Rating Formula is not warranted. In addition, the Veteran did not have a diagnosis of IVDS during the pendency of the appeal and his reported incapacitating episodes do not qualify as incapacitating episodes of IVDS as defined by VA regulation. Indeed, incapacitating episodes are defined by VA as those episodes for which bedrest is prescribed by a physician. Here, there is no evidence of incapacitating episodes, let alone episodes of IVDS of at least four weeks but less than six weeks during the past 12 months to warrant a higher rating. In sum, the Board assigns a 20 percent rating, but not higher, for the Veteran’s lumbar spine disability prior to June 23, 2020. Beginning June 23, 2020 As noted, the RO assigned a 40 percent rating beginning June 23, 2020, for the Veteran’s lumbar spine disability. On June 23, 2020, the Veteran underwent an additional back examination, at which time the examiner confirmed a diagnosis of degenerative arthritis of the spine. The Veteran reported severe low back pain radiating to both lower extremities. Treatment included physical therapy, acupuncture, facet block, and plasma injections. The Veteran reported having flare-ups, which he described as severe pain and decreased range of motion. Functional loss/impairment was described as inability to run and do any heavy liftings, as well as difficulty with prolonged standing and sitting. Upon physical examination, range of motion of the lumbar spine revealed forward flexion to 80 degrees; extension to 30 degrees; lateral flexion to 30 degrees, bilaterally; and, lateral rotation to 30 degrees, bilaterally. The examiner noted that range of motion itself did not contribute to functional loss, but pain was noted on examination and caused functional loss. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was no evidence of pain with weight bearing or non-weightbearing. There was no additional loss of function or range of motion after repetitive use testing with three repetitions. There was no guarding or muscle spasm. There was no ankylosis or IVDS. The examiner noted that the examination was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time and that pain significantly limited functional ability with repeated use over time. However, the examiner estimated no additional decrease in range of motion after repeated use over time. Nevertheless, during flare-ups, the examiner estimated range of motion of the lumbar spine with forward flexion to 30 degrees; extension to 25 degrees; lateral flexion to 20 degrees, bilaterally; and, lateral rotation to 20 degrees, bilaterally. Muscle strength testing was normal (5/5) throughout with no evidence of muscle atrophy. Reflex and sensory examinations were normal throughout. Straight leg raising test was negative, bilaterally. The examiner noted that the Veteran had no radicular pain or any other signs or symptoms due to radiculopathy. The Veteran used no assistive devices. There were no other pertinent physical findings, complications, conditions, signs, symptoms, or scars associated with the lumbar spine disability. The examiner opined that there was no clinical evidence to support of a diagnosis of neurological impairment or IVDS. In this regard, the examiner explained that although the Veteran reported symptoms of radiculopathy (pain) and IVDS, there was insufficient objective evidence found to diagnose the condition. There are no subsequent findings relevant to the severity of the lumbar spine disability. On review, the Board finds that a rating higher than 40 percent is not warranted from June 23, 2020. Notably, there is no diagnosis of unfavorable ankylosis of the entire thoracolumbar spine to warrant a 50 percent rating under the General Rating Formula. Moreover, in Johnston v. Brown, 10 Vet. App. 80, 85 (1997), the Court indicated that where the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis, the cited regulations are not for application. See id. at 84-85 (although the Secretary suggested remand because of the Board’s failure to consider functional loss due to pain, remand was not appropriate because higher schedular rating required ankylosis). The Veteran’s reports of flare-ups do not provide evidence of ankylosis. A rating greater than 40 percent under the General Rating Formula is not for further consideration. Additionally, the Veteran is not diagnosed with IVDS during the pendency of the appeal and his reported incapacitating episodes are not indicative of incapacitating episodes of IVDS as defined by VA regulation. Indeed, incapacitating episodes are defined by VA as those episodes for which bedrest is prescribed by a physician. Other Considerations In addition to consideration of the orthopedic manifestations of the lumbar spine disability, VA regulations require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, DCs 5235 to 5243, Note (1). (Continued on the next page)   On review, the Board finds no evidence of neurological impairment resulting from the lumbar spine disability. In this regard, while the Veteran is competent to report radiating pain, the 2020 examiner explained that such did not amount to the level of diagnosis of a neurological impairment. Moreover, the evidence shows that the Veteran only complained of radiating pain once during the pendency of the claim, and there is no indication that such resulted in functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Additionally, medical evidence specifically shows no evidence of neurological manifestations. Indeed, muscle strength testing and reflex and sensory examinations were all normal throughout the pendency of the claim. As such, separate ratings for neurological impairment in the lower extremities associated with the lumbar spine disability are not warranted. Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2018) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Yaffe, 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.