Citation Nr: 21061346 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 17-40 466 DATE: October 1, 2021 ORDER Entitlement to an initial disability rating of 20 percent, but no higher, for service-connected lumbar discogenic disc disease for the entire period on appeal is granted. FINDING OF FACT. In giving the benefit of the doubt in favor of the Veteran, for the entire period on appeal, the Veteran's lumbar discogenic disc disease was manifested at worst by forward flexion of the spine greater than 30 degrees but not greater than 60 degrees. CONCLUSION OF LAW For the entire period on appeal, the criteria for a 20 percent rating, but no higher, for service-connected lumbar discogenic disc disease has been met. 38 U.S.C. §§ 115, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.71a, DC 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1991 to October 2015. The Board of Veterans' Appeals (Board) remanded this matter for further development in April 2019. In a July 2020 rating decision, the Regional Office (RO) increased the Veteran's back disability evaluation to 20 percent, effective November 21, 2019. As the RO did not assign the maximum disability rating possible, the appeal for a higher evaluation remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Increased Rating Lumbar Discogenic Disc Disease Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has been established and a higher initial disability rating is at issue, the level of disability at the time entitlement arose is of primary concern. Consideration must also be given to a longitudinal picture of the veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is rated under Diagnostic Code 5237. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. The following ratings are available for Diagnostic Code 5237 under the General Rating Formula for Diseases and Injuries of the Spine: 100 percent for unfavorable ankylosis of the entire spine; 50 percent for unfavorable ankylosis of the entire thoracolumbar spine; 40 percent for forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine; 20 percent for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; 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; and 10 percent 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. 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. Plate V, 38 C.F.R. § 4.71a. The Notes following the General Rating Formula provide further guidance in rating diseases or injuries of the spine. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Diagnostic Code 5243 provides that intervertebral disc syndrome (preoperatively or postoperatively) be rated either under the General Rating Formula for Disease and Injuries of the Spine, or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Under Diagnostic Code 5243, a 40 percent rating is warranted where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. Id. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. Id. Diagnostic Code 5243 defines an incapacitating episode as a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. Id. 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. DeLuca v. Brown, 8 Vet. App. 202 (1995); 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."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis but is not limited to disabilities involving arthritis. Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. At a July 2015 VA examination, the Veteran reported daily back pain, rated 5 out of 10 on the pain scale. He reported flare-ups described as rarely having increase in back pain stating that pain stays mostly at a 5 out of 10. He also reported functional loss described as being instructed not to lift any object weighing more than 50 pounds. Range of motion testing revealed forward flexion to 80 degrees, extension to 30 degrees, right lateral flexion to 25 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. No pain or additional functional loss was noted. There was no evidence of pain during weight bearing. Repetitive use testing revealed no additional loss of range of motion. The VA examiner stated the examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss during a flare-up and indicated that pain, weakness, fatigability, or incoordination would not significantly limit functional ability with repeated use over a period of time or during a flare-up. There were also no additional factors contributing to the disabilities. Muscle strength testing reflected normal strength, without atrophy or ankylosis, and there was no evidence of intervertebral disc syndrome (IVDS). Based on the evidence from the July 2015, the RO granted service connection for the Veteran's back condition in February 2016 and assigned a 10 percent rating effective November 1, 2015. Subsequently, after the February 2016 rating decision, the Veteran submitted his appeal for an increased rating. He was then afforded VA examination in May 2017. There, he reported soreness when he awakens and rated his pain an 8 out of 10. He reported flare-ups described as pain levels rarely increasing beyond an 8 out of 10. He also reported function impairment described as not being able to lift heavy objects greater than 50 pounds. The examiner indicated that range of motion testing was all normal with no evidence of pain noted on examination. There was no evidence of pain during weight bearing. Repetitive use testing revealed no additional loss of range of motion. The VA examiner stated the examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss during a flare-up and indicated that pain, weakness, fatigability, or incoordination would not significantly limit functional ability with repeated use over a period of time or during a flare-up. There were also no additional factors contributing to the disabilities. Muscle strength testing reflected normal strength, without atrophy or ankylosis, and there was no evidence of IVDS. After the May 2017 VA examination, the Veteran alleged to have reported having painful motion during forward flexion at around 30 35 degrees. He also reported painful motion during the lateral flexion and extension portions of the range of motion tests however, the examiner noted there was no pain reported during any portion of range of motion test. In this regard, the Board remanded this matter for further evidentiary development. Pursuant to the April 2019 Board remand, the Veteran was afforded a VA examination in November 2019. The Veteran reported 7 out of 10 daily low back pain with sporadic pain radiating down both his legs to knees, but with no associated numbness or tingling. He reported using topical heat with limited relief, no use of assistive devices and no current medical therapy other than over-the-counter Advil. He reported flare-ups, sometimes in the morning or at the end of the day, which caused the middle of his back to be painful. He described having functional loss as being unable to lift more than 50 pounds, walk half a mile, stand for 30 minutes, sit for 30 minutes, and being unable to bend over and tie his shoes. Range of motion testing revealed forward flexion to 50 degrees, extension to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 30 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 30 degrees. Pain was noted on examination which caused functional loss during forward flexion, extension, right lateral flexion, and right lateral rotation. There was no evidence of pain with weight bearing. Repetitive use testing revealed no additional loss of range of motion. The VA examiner stated the examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss during a flare-up and indicated that pain, weakness, fatigability, or incoordination would not significantly limit functional ability with repeated use over a period of time or during a flare-up. Straight leg raising test was positive in the right leg and the Veteran had mild intermittent radicular pain on the right lower extremity. There was no evidence of ankylosis or IVDS. The Board finds that for the entire period on appeal the Veteran's service-connected lumbar discogenic disc disease warrants a 20 percent rating, but no higher. While the July 2015 VA examination revealed forward flexion to 80 degrees, as the Veteran has continuously reported back pain, after his May 2017 VA examination alleged to have reported having painful motion during forward flexion at around 30 35 degrees and the November 2019 VA examination revealed forward flexion to 50 degrees with pain, resolving reasonable doubt in favor in the Veteran the Board finds a 20 percent rating is warranted for the entire period on appeal. The Board finds a rating in excess of 20 percent is not warranted because at no time during this appeal period has the Veteran's back disability more nearly approximated forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. The evidence of record simply does not support such findings as the objective evidence fails to show that the Veteran has the necessary limitation of range of motion or ankylosis to warrant the next-higher 40 percent rating. Also, IVDS was not diagnosed on examination at any time throughout the appeal period. While the Veteran reported painful motion during forward flexion at around 30 35 degrees after the May 2017 VA examination, the November 2019 VA examination revealed forward flexion to 50 degrees with pain. Separately, the medical evidence does not show that the Veteran has neurological manifestations resulting from his back condition that would warrant a separate rating other than his already service-connected radiculopathy of the right lower extremity. While the Veteran reported sporadic pain radiating down both legs to his knees during the May 2019 VA examination, the examiner found no symptoms of radicular pain, numbness or paresthesias in the left lower extremity, straight leg raising test was negative and sensory examination was negative. Accordingly, a disability rating of 20, but no higher, for the service-connected lumbar discogenic disc disease is warranted. R. Costello Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. R. Bobb, 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.