Citation Nr: 21004920 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 13-20 715 DATE: January 28, 2021 ORDER Entitlement to an increased disability rating of 40 percent for service-connected lumbosacral strain (lumbar spine disability), but no greater, prior to November 1, 2019 is granted. Entitlement to a disability rating greater than 40 percent for service-connected lumbosacral strain (lumbar spine disability) from November 1, 2019 is denied. Entitlement to a separate disability rating for a bladder impairment as an associated abnormality of the lumbar spine disability is granted. FINDINGS OF FACT 1. Prior to November 1, 2019, the Veteran's lumbar spine disability caused limitation of flexion of 15 degrees with a combined range of motion of 65 degrees. Additionally, the Veteran reported constant low back pain which inhibits her ability to perform activities of daily living. 2. For the entire appeal period, the Veteran's lumbar spine did not exhibit ankylosis, nor did it require bed rest prescribed by a physician and treatment by a physician in the previous 12 months. 3. The Veteran's bladder impairment is proximately due to her service-connected lumbar spine disability. CONCLUSIONS OF LAW 1. The criteria for an evaluation of 40 percent, but not higher, for the Veteran's lumbar spine disability prior to November 1, 2019 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.71a, DC 5237 2. The criteria for an evaluation greater than 40 percent, for the Veteran's lumbar spine disability from November 1, 2019 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.71a, DC 5237 3. The criteria for a separate rating for a bladder and bowel impairment are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.71a, DC 5237 at Note (1) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1990 to June 1995. In March 2015 the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This matter was previously before the Board in October 2015 and March 2019. As part of the Board’s remand directives, the AOJ was asked to obtain an examination report which complies with 38 C.F.R. § 4.59 and Correia. The Board further instructed that the examiner clarify whether the post-remand examination findings are consistent with the March 2016 private examination estimate, regarding the extent of functional limitations of the Veteran’s lumbar spine disability after repeated use over time and/or during flare-ups. During the pendency of this appeal, in a July 2020 rating decision, the AOJ increased the Veteran’s disability rating from 20 to 40 percent, for her lumbar spine disability effective November 1, 2019. The Board notes that this did not constitute a full grant of the benefits sought. Accordingly, the Veteran’s increased rating appeal for lumbar spine disability, remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). The Board acknowledges that in October 2020 the Veteran's attorney submitted a VA Form 20-0996, "Decision Request: Higher Level Review" requesting higher level review for the increased rating lumbar spine disability by the RO. The Board notes, however, that there is no mechanism for higher level review for a Supplemental Statement of the Case (SSOC) for issues already in appellate status before the Board, as opposed to issues prior to certification to the Board following rating decision or Statement of the Case (SOC). Increased Ratings Disability evaluations (ratings) are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 38 C.F.R. §§ 4.1, 4.2, 4.10. 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. Reasonable doubt regarding the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505. Back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating IVDS based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a, DCs 5235 5243. Under the Formula for Rating IVDS Based on Incapacitating Episodes, a 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal; and a 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. 38 C.F.R. § 4.71a, DC 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. 38 C.F.R. § 4.71a, DC 5243, Note (1). The Veteran's lumbar spine disability is rated under the General Rating Formula for Diseases and Injuries of the Spine, which provide the criteria for rating spinal disabilities with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease. 38 C.F.R. § 4.71a. Under the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent rating is warranted for forward flexion of the thoracolumbar spine limited to 30 degrees or less, or, for favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. Any associated objective neurologic abnormalities including, but not limited to bladder impairment, are to be evaluated separately, under an appropriate diagnostic code. Id. at Note (1). 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; 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 criteria."). 1. Entitlement to an increased disability rating of 40 percent for a lumbar spine disability prior to November 1, 2019 The Veteran contends that she is entitled to a disability rating greater than 20 percent prior to November 1, 2019 for her lumbar spine disability. The Board agrees. In a March 2016 Back Conditions Examination completed by a physician assistant (L. D), the Veteran reported having 3-4 flare-ups per week that inhibit her ability to perform all activities of daily living (ADLs). The examiner found the Veteran's forward flexion was limited to 15 degrees, her extension to 10 degrees, her right lateral flexion to 10 degrees, her left lateral flexion to 10 degrees, her right lateral rotation to 10 degrees, and her left lateral rotation to 10 degrees with a combined range of motion of 65 degrees. The examiner found that the Veteran did have additional limitation, guarding and abnormal gait due to severe muscle spasms. There was evidence of IVDS with incapacitating episodes of at least 4 weeks. No ankylosis or muscle atrophy were noted. See March 2016 VA Examination. VA treatment records from 2016 show that the Veteran complained of worsening pain with regard to her lumbar spine disability. In a March 2018 Back Conditions Examination, the Veteran described flare ups of the back as sharp throbbing pain with stiffness and an inability to bend down. The Veteran reported that she was unable to stand, walk, sit or drive for prolong periods of time. The examiner found that the Veteran’s forward flexion was limited to 60 degrees, extension to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees with a combined range of motion of 160 degrees. The examiner answered ‘no” to whether pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time and with flare-ups. There was no evidence of IVDS or ankylosis. The examiner remarked that there was objective evidence of pain on passive range of motion testing of the back but no evidence of pain on non-weight bearing testing of the back. The examiner further remarked that “for the VA established diagnosis of lumbosacral strain, the diagnosis is changed, and it is a progression of the previous diagnosis. Xray with disc space decreasing at the L4-5 and L3 Level and very subtle scoliotic curvature extending L2-L5”. See March 2018 VA examination. In an August 2018 Back Conditions Examination, the Veteran reported that she was unable to walk more than 5 minutes, unable to stand more than 15minutes, unable to complete ADLs and that pain interrupts her sleep. The examiner found that the Veteran’s forward flexion was limited to 50 degrees, extension to 10 degrees, right lateral flexion to 15 degrees, left lateral flexion to 15 degrees, right lateral rotation to 0 degrees, and left lateral rotation to 0 degrees with a combined range of motion of 90 degrees. The examiner found pain with weight bearing and non-weight bearing, and pain with active and passive motion. The examiner answered ‘no” to whether pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time and with flare-ups. The examiner noted IVDS with no signs and symptoms that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. There was no evidence of ankylosis. See August 2018 VA examination. In a November 2018 Back Conditions Examination, the Veteran reported having problems walking, jumping and lifting objects. Initial range of motion test results indicated forward flexion to 60 degrees; extension to 20 degrees; right and left lateral flexion to 20 degrees; right and left lateral rotation to 20 degrees respectively. There was no evidence of pain with weight bearing. The examiner estimated functional limits after repeated use over time and during flare-ups in terms of range of motion limits. Flexion was the same and other measurements were reduced to 10 degrees. The examiner remarked that there was objective evidence of pain on passive range of motion testing of the back but no evidence of pain on non-weight bearing testing of the back.” No IVDS or ankylosis were noted. See November 2018 C&P Examination. Following the March 2019 Board remand, the Veteran was afforded a VA Back Conditions Examination in November 2019. The Veteran reported that flare-ups of her back occur about three times per week. She stated that the flare-ups are mild, moderate and severe depending on how bad it is and last a few hours; and are precipitated by almost any activity; and are alleviated by rest. The Veteran stated that she cannot perform usual activities in a normal manner. Initial range of motion test results indicated forward flexion to 40 degrees; extension to 15 degrees; right and left lateral flexion to 15 degrees respectively; right and left lateral rotation to 15 degrees respectively. The examiner noted that the ROM is further reduced to 30 degrees for flexion after three repetitive use, and to 20 degrees during flare-ups. There was no evidence of ankylosis or muscle atrophy. IVDS was noted but said to have no signs and symptoms requiring bed rest prescribed by a physician and treatment by a physician in the past 12 months. Responding to the Board’s remand directive with respect to reconciling conflicting medical evidence, the November 2019 examiner noted that the ROM estimates that day were consistent with that of the March 2016 examiner. See November 2019 C&P Examination. In a June 2020 Disability Benefits Questionnaire (DBQ) provided by Veteran, the examiner noted that pain was noted at 15 degrees but that the veteran was able to push to 28 degrees for forward flexion. It was noted that the Veteran has IVDS but with no signs and symptoms requiring bed rest prescribed by a physician and treatment by a physician in the past 12 months. The examiner also found other neurological disabilities including a bladder condition that was associated with the lumbar spine disability. See June 2020 DBQ. Based on the evidence outlined above, the Board finds that beginning March 11, 2016, medical record reveals that the Veteran’s lumbar spine disability best approximates a 40 percent evaluation, but not higher. An examination conducted at that time by a private physician found that the Veteran's forward flexion was limited to 15 degrees, with a combined range of motion of 65 degrees. Under the General Formula for rating spine disabilities and DC 5237, a 40 percent rating is warranted because of the severe limitation of motion of her lumbar spine. Although the March, August and November 2018 VA examinations found that the Veteran's lumbar spine flexion was only limited to 60 and 50 degrees, the Board finds that the examinations was not consistent with the Veteran's reported worsening symptoms that were documented in prior private medical records. Without an accurate factual background, the examination is not adequate for purposes of evaluation. See Reonal v. Brown, 5 Vet. App. 458 (1993) (An opinion is only as good and credible as the history on which it was based; thus, the Board may reject a medical opinion based on an inaccurate factual predicate). Furthermore, range of motion is only one aspect that constitutes an evaluation under DC 5237. DeLuca, 8 Vet. App. at 206. The Veteran's reported symptoms and functional loss caused by the disability are considered when providing an evaluation. To this end, it is clear that the Veteran's disability warrants a 40 percent evaluation beginning March 11, 2016 as evidenced by her treatment records the November 2019 VA examiner who indicated that the March 2016 range of motion estimates were consistent with that of his (the November 2019 examiner). There is no evidence, however, that would allow the Board to find that the Veteran’s lumbar spine disability warrants a rating in excess of 40 percent prior to November 1, 2019. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. DC 5237. There has been no ankylosis shown by the record. The Board has considered whether a higher rating is warranted under the Formula for Rating IVDS Based on Incapacitating Episodes for this appeal period. While the March 2016, August 2018 and November 2019 examinations noted IVDS, these examinations did not reveal that the Veteran experience incapacitating episodes having a total duration of at least six weeks during the past 12-month period. As such, a rating in excess of 40 percent based on IVDS is not shown under DC 5243 and application of that DC is not beneficial to the Veteran. 2. Entitlement to a disability rating greater than 40 percent for a lumbar spine disability from November 1, 2019 The Veteran asserts that her lumbar spine disability deserves a rating greater than 40 percent from November 1, 2019. The November 2019 VA back examination noted that the Veteran did not have ankylosis of the spine, nor did she have unfavorable ankylosis of the entire thoracolumbar spine. Additionally, the Veteran treatment records of record do not report unfavorable ankylosis of the entire thoracolumbar spine. While VA must in some circumstances consider functional impairment in addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, and incoordination, see DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); 38 C.F.R. §§ 4.40, 4.45, this rule does not apply where, as here, the Veteran is receiving the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). Similarly, Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) and Correia v. McDonald, 28 Vet. App. 158 (2016) are not for application because those decisions pertain to the adequacy of examinations as they relate to range of motion findings, but range of motion findings are not relevant here because they cannot result in a higher rating. As none of the competent evidence of record demonstrates that the Veteran suffers from ankylosis of the entire thoracolumbar spine or the entire spine, the Board finds that the Veteran is not entitled to a rating in excess of 40 percent under the General Rating Formula for Diseases and Injuries of the Spine or IVDS. Accordingly, the preponderance of the evidence is against an increased rating in excess of 40 percent for the Veteran's lumbar spine disability from November 1, 2019. All evidence has been considered and there is no doubt to be resolved. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Gilbert, 1 Vet. App. 49 (1990). 3. Entitlement to a separate disability rating for a bladder impairment as an associated abnormality of the lumbar spine disability As stated above, any associated objective neurologic abnormalities including, but not limited to bladder impairment, are to be evaluated separately, under an appropriate diagnostic code. Id. at Note (1). The Board notes that the June 2020 private DBQ indicated incontinence of the bladder, as objective neurologic abnormalities of the lumbar spine disability. Although the VA examinations did not find bladder neurologic abnormality, giving   the Veteran the benefit of the doubt, the Board finds that a separate rating for this condition is warranted. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. M. Rogers, 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.