Citation Nr: 21004971 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 16-32 706 DATE: January 28, 2021 ORDER For the entire rating period on appeal prior to November 3, 2020, a 40 percent disability rating, but not higher, for a lumbar spine disability, is granted. Beginning November 3, 2020, a rating higher than 40 percent, for a lumbar spine disability, is denied. FINDING OF FACT Resolving all doubt in the Veteran’s favor, symptoms of the lumbar spine disability more nearly result in forward flexion to 30 degrees, but do not meet or more nearly approximate 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. CONCLUSIONS OF LAW 1. Prior to November 3, 2020, the criteria for a 40 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 (DC) 5242 (2019). 2. For the entire rating period on appeal, 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, 4.71a, DC 5242 (2019). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from June 1988 to June 2008. In October 2018, the Board restored the Veteran’s back disability rating to 20 percent and remanded the claim for further development. In addition, the Board remanded a claim for entitlement to a TDIU. In July 2020, the Board remanded the issue of increased rating higher than 20 percent for a lumbar spine disability as well as entitlement to a TDIU. Thereafter, in a November 2020 rating decision, the RO increased the Veteran’s lumbar spine disability rating to 40 percent effective November 3, 2020. The decision further granted entitlement to a TDIU, effective November 21, 2013, a day after the Veteran stopped working per his reports on his formal application for a TDIU. The grant for a TDIU is considered a full grant of the benefits sought on appeal. Therefore, the issue remaining on appeal is entitlement to increased rating higher than 20 percent prior to November 3, 2020, and higher than 40 percent thereafter, for a lumbar spine disability. Increased Rating – Applicable Laws and Regulations 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). Lumbar Spine Disability – Rating Criteria 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). Lumbar spine – Rating Analysis By a February 2012 rating decision, the Veteran’s lumbar spine disability was increased to 20 percent based on an August 2011 VA examination report, which showed forward flexion of the lumbar spine to 45 degrees. As discussed by the Board in its October 2018 decision that restored the 20 percent rating for a lumbar spine, the Board found some deficiencies with the July 2014 VA examination. Specifically, the Board noted that prior VA examinations were more consistent with the evidence of record than the July 2014 VA examination. The December 2008 examination report showed forward flexion of the lumbar spine to 75 degrees with objective evidence of pain at 60 degrees; the October 2010 examination report showed forward flexion of the lumbar spine to 60 degrees with objective evidence of pain at 50 degrees; an August 2011 examination report showed forward flexion of the lumbar spine to 45 degrees with objective evidence of pain at 45 degrees. In addition, while the Veteran reported flare-ups during the July 2014 examination, such were not acknowledged or considered by the VA examiner. As such, the Board will not rely on the findings of the July 2014 examination. A review of the Veteran’s treatment records showed that he continuously continued to complain of back pain from the date of claim in 2013. Notably, VA treatment records dated in February 2015 indicated that the Veteran had back pain that was chronic and progressive, and noted that repeat MRI was needed. In his May 2015 notice of disagreement, the Veteran stated, “This condition has not improved since my last evaluation and has actually worsened.” He further noted that he was prescribed medications for his back condition, and this may have masked the pain during the examination which may account for any improvement in comparison to the previous examination. He added that he did not think this should be considered sustained improvement and asked that the condition will be rated at the higher rating. Subsequent VA treatment records dated in August 2015 showed reports of back pain which was described as 10 out of 10 in severity. Moreover, prior and subsequent treatment records showed active prescriptions for treatment of the Veteran’s back such as Etodolac 500mg and Methocarbamol 500mg. Additional treatment records dated from 2016 to 2018 showed continues complaints of low back pain. An April 2018 MRI revealed lower lumbar facet arthropathy with disc bulging at L3-4 causing mild central canal stenosis and bilateral neural foraminal narrowing unchanged from prior MRI. In October 2019, the Veteran underwent an additional back compensation examination, at which time the examiner confirmed diagnoses of degenerative arthritis of the spine and IVDS. The Veteran reported sharp pain, numbness, back giving out, back feeling hot, and weakness. He further noted that he could not stand or sit for too long and could not lift heavy things. The Veteran reported having flare-ups, which were described as daily and mild to severe. They lasted for hours and sometimes were present all night. Functional loss/impairment was described as inability to run, difficulty bending, difficulty sleeping, and inability to walk, sit, lay, or stand for too long. Upon physical examination, range of motion of the lumbar spine revealed forward flexion to 45 degrees; extension to 20 degrees; lateral flexion to 20 degrees, bilaterally; and, lateral rotation to 25 degrees, bilaterally. Range of motion itself contributed to functional loss due to decreased tolerance for bending, lifting, decreased ability to run, and decreased tolerance for prolonged standing and walking. Pain was noted on examination and caused functional loss. There was evidence of pain with weight-bearing but no evidence of localized tenderness or pain on palpation. There was no additional loss of function or range of motion after repetitive use testing with three repetitions. The examiner indicated that the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss after repeated use over time or during flare-ups; however, the examiner estimated that under these conditions, range of motion would reveal forward flexion to 50 degrees; extension to 20 degrees; right lateral flexion to 20 degrees; left lateral flexion to 30 degrees; and, lateral rotation to 30 degrees, bilaterally. In other words, the examiner estimated that the Veteran’s range of motion would improve during flare-ups or after repeated use over time in comparison to the range of motion testing during the examination. However, the examiner noted that the examination was not conducted during a flare-up or after repeated use over time. There was no evidence of ankylosis, and the examiner indicated that the Veteran had no diagnosis of IVDS despite checking IVDS in the diagnosis section of the examination report. Muscle strength was normal throughout with no evidence of muscle atrophy. Reflex and sensory examinations were normal. Straight leg raising test was negative, bilaterally. The examiner further noted that the Veteran had no radicular pain or radiculopathy despite the Veteran’s competent reports of radiating pain and numbness. Lastly, the examiner noted that the Veteran used a cane constantly when out of bed. Given the above-mentioned deficiencies found in the 2019 examination report, the Board remanded the claim to provide the Veteran with a new VA examination. In November 2020, the Veteran underwent an additional back compensation examination, at which time the examiner confirmed diagnoses of degenerative arthritis of the spine and IVDS. The Veteran reported that the cold weather made his back pain worse on the date of the examination. He had daily pain of 6 to 7 out of 10 in severity with spasms feeling like “someone stabbing with a hot knife.” He added that at times he felt as if he was sitting in a heated sit, could not get up without holding onto something, and sometimes had to pull himself up to stand. He could not sit or stand for too long and had dull ache across the bottom of the back and buttocks with numbness in the left side and intermittent on the right side. He reported having flare-ups, which were described as muscle spasm with the slightest band causing the pain to radiate to both legs. At the time, the pain was severe, 10 out of 10, and lasted between an hour to a whole day. Functional loss/impairment was described as inability to tie shoes, put socks on, squat, kneel, sit too long, bed, pick things up off the floor, pain getting in and out of bed, walking more than one block, and prolonged standing. Upon physical examination, range of motion of the lumbar spine revealed forward flexion to 20 degrees; extension to 10 degrees; lateral flexion to 20 degrees, bilaterally; and, lateral rotation to 20 degrees, bilaterally. Range of motion itself contributed to functional loss due to stiffness and discomfort with movement and limitation on mobility, bending, sitting, standing, and walking. Pain was noted on examination and caused function loss. There was evidence of pain with weight-bearing and middle to lower back paravertebral tenderness to gentle palpation that was moderate (6 to 7 out of 10) in severity. After repetitive use testing range of motion of the lumbar spine revealed forward flexion to 15 degrees; extension to 5 degrees; lateral flexion to 10 degrees, bilaterally; and, lateral rotation to 10 degrees, bilaterally. Pain, fatigue, weakness, and lack of endurance caused functional loss. The examiner was medically consistent with the Veteran’s statements describing functional loss with repetitive use over time and/or during flare-ups. The examiner estimated the additional loss under these conditions as noted above. There was no ankylosis and IVDS did not result in any episodes of acute signs and symptoms that required bed rest prescribed by a physician. There was muscle spasm and guarding that resulted in abnormal gait. Muscle strength testing was normal for great toe extension and showed active movement against some resistance throughout. There was no evidence of muscle atrophy. Reflexes were absent on the knees and ankles, bilaterally. Sensory examination was normal. The examiner indicating it was not possible to obtain reflexes despite multiple attempts sitting and lying down. Straight leg raising test was negative, bilaterally. The Veteran had radicular pain and symptoms of radiculopathy that included right lower extremity moderate constant pain, mild paresthesias, and moderate numbness, and left lower extremity severe constant pain, moderate paresthesias, and moderate numbness. The examiner noted that the there was a left leg dysesthesia that sometimes felt like water running down the leg with numbness and the leg “giving out.” The right leg felt like walking on rubber sensation and “not normal.” The examiner concluded that the severity of the lumbar radiculopathy was analogous to moderate incomplete paralysis of the sciatic nerve, bilaterally. The Veteran used a cane regularly. On review, resolving all doubt in the Veteran’s favor, the Board finds that the criteria for a 40 percent rating, but not higher, is approximated for the entire rating period on appeal. In so finding, the Board notes that the only adequate VA examination report is the November 2020 examination report, at which time forward flexion after repetitive use as only to 15 degrees. Given that VA examination immediately prior to the rating period on appeal showed forward flexion to 45 degrees, and the medical and lay evidence of worsening throughout the pendency of the appeal, leading to the 2020 VA examination report, the Board finds that forward flexion to 30 degrees is approximated for the entire rating period on appeal. Nevertheless, a rating higher than 40 percent is not warranted. Notably, there is no diagnosis of unfavorable ankylosis of the entire thoracolumbar spine to warrant the next-higher 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). A rating greater than 40 percent based on the DeLuca factors is applicable here. Finally, the objective medical evidence does not show that the Veteran has had any incapacitating episodes of IVDS that required bed rest prescribed by a physician; therefore, a higher rating under the IVDS formula is not warranted. In sum, the Board awards a 40 percent rating, but not higher, for the entire rating period on appeal. Associated Neurological Impairment 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) (2019). Disability ratings of 10, 20, and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. A disability rating of 60 percent is warranted for severe incomplete paralysis with marked muscle atrophy. An 80 percent rating is warranted for complete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, DC 8520. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Neither the Rating Schedule nor the regulations provide definitions for descriptive words such as “mild,” “moderate,” “moderately severe,” and “severe.” See Sellers v. Wilkie, 30 Vet. App. 157 (2018). Rather than applying a mechanical formula, the Board must instead evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. Here for the rating period on appeal the right lumbar radiculopathy is rated as 10 percent disabling prior to November 3, 2020, and 20 percent thereafter. The left lumbar radiculopathy is rated as 20 percent disabling for the entire rating period on appeal. On review, the Board does not find that the evidence more nearly approximate moderately-severe symptoms of radiculopathy. Specifically, the VA examiner considered the symptoms of the radiculopathy and concluded that those were analogous to bilateral moderate incomplete paralysis of the sciatic nerve. Prior to November 2020, the evidence does not show that the right lumbar radiculopathy warranted a rating higher than 10 percent. In fact, the Veteran did not express disagreement with the assigned ratings for his bilateral lumbar radiculopathy. Finally, neither the Veteran nor his attorney 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 (2017) (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.