Citation Nr: 21064026 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 15-31 303A DATE: October 18, 2021 ORDER Entitlement to an initial disability rating of 40 percent, but not higher, for the service-connected degenerative disc disease with intervertebral disc syndrome (IVDS) (formerly evaluated as strain) of the thoracolumbar spine (back disability) prior to January 6, 2020 is granted. FINDING OF FACT In giving the benefit of the doubt in favor of the Veteran, for the entire period on appeal prior to January 6, 2020, the Veteran's back disability is more analogous to forward flexion of the thoracolumbar spine limited to 30 degrees or less. CONCLUSION OF LAW For the entire period on appeal, the criteria for a 40 percent rating, but no higher, for service-connected back disability has been met. 38 U.S.C. §§ 115, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.71a, Diagnostic Code (DC) 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1984 to September 2013. In August 2020, the Board of Veterans' Appeals (Board) denied a rating greater than 10 percent prior to January 6, 2020 for the Veteran's service-connected back disability and an evaluation greater than 40 percent from January 6, 2020 for this disorder. The Veteran appealed that portion of the Board's August 2020 decision that denied a rating greater than 10 percent for his service-connected back disability prior to January 6, 2020 to the United States Court of Appeals for Veterans Claims (Court). The Court issued a May 2021 Order granting a Joint Motion for Partial Remand (JMPR) which vacated that portion of the August 2020 Board decision as to the denial of an initial rating in excess of 10 percent for his service-connected back disability, prior to January 6, 2020. (As the Veteran did not appeal that portion of the Board's decision that denied a rating greater than 40 percent for his service-connected back disability from January 6, 2020, the Court dismissed that portion of the appeal.) The Court remanded the issue remaining on appeal (as is defined on the title page of this decision) to the Board to be readjudicated in accordance with the JMPR instructions. Pursuant to the Court remand, the Veteran was accorded opportunity to submit additional evidence and arguments regarding this claim. As such, the Board adjudicates this matter accordingly. Increased Rating Back Disability Prior to January 6, 2020 Disability ratings are determined by comparing a Veteran's present symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In the current appeal, the Veteran contends that a higher rating is warranted for his service-connected back disability prior to January 6, 2020. During this portion of the appeal period, his thoracolumbar spine disability was rated under DC 5237. 38 C.F.R. § 4.71a. The following ratings are available for DC 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. DC 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, DC 5243. Under DC 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. DC 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 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 an October 2013 VA examination, the Veteran reported daily back pain with flare-ups and worsened symptoms after running. Initial range of motion testing revealed forward flexion to 90 degrees or greater, with pain; extension to 30 degrees or greater; right lateral flexion to 30 degrees or greater; left lateral flexion to 30 degrees, with pain; right lateral rotation to 30 degrees or greater; and left lateral rotation to 30 degrees or greater. Repetitive use testing revealed the same range of motion measurements as on initial range of motion however, the Veteran had functional loss described as pain on movement. Information regarding the Veteran's flare-ups was not provided. Muscle strength testing was normal, and the Veteran did not have muscle atrophy, radiculopathy, neurologic abnormalities, or IVDS. The examiner acknowledged that IVDS technically existed at such time, but explained that such problems existed only to a minor degree as to not be the cause of pain and thus was not clinically significant. The Veteran was granted service connection for his back disability in April 2014 and received a 10 percent evaluation effective October 1, 2013 based, in part, on the results of the October 2013 VA examination. In March 2015, the Veteran filed a Notice of Disagreement (NOD) seeking a 20 percent evaluation for his service-connected back disability stating that such had become more debilitating and painful, causing his quality of low to be lessened. At a June 2016 VA examination, the Veteran reported consistent back pain with levels at a 3 or 4 out of 10 on the pain scale with flare-ups generally at an 8 of 10. His flare-ups were induced by prolonged sitting, bending, twisting, and running and lasted a few hours to a day or two. He also reported intermittent left leg numbness and tingling. Functionally, the Veteran stated that his work required him to search aircrafts which caused back discomfort due to bending and twisting. The examiner documented that the Veteran reported flare-ups but did not describe functional loss of his back. Initial range of motion revealed forward flexion to 65 degrees, with pain; extension to 20 degrees; right lateral flexion to 20 degrees; left lateral flexion to 20 degrees; right lateral rotation to 30 degrees; and left lateral rotation to 30 degrees. Such range of motion did not contribute to a functional loss. There was no evidence of pain with weight-bearing and no objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the back. Observed repetitive use did not cause additional loss of function or range of motion. The Veteran was not examined immediately after repeated use over time or during a flare-up, but the examiner indicated that the examination was neither medically consistent or inconsistent with the Veteran's statements regarding functional loss with repetitive use over time or with flare-ups. Likewise, pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time or during flare-ups. The Veteran had localized tenderness not resulting in abnormal gait or abnormal spinal contour. Muscle strength testing was normal, and the Veteran did not have muscle atrophy, radiculopathy, or ankylosis. His IVDS did not cause episodes of acute signs and symptoms due to IVDS that required prescribed bed rest and treatment by a physician in the past 12 months. In April 2019, the Board found that the June 2016 VA examination was inadequate as it did not comply with the requirements of Sharp. The Board then remanded this appeal to provide the Veteran a new VA examination. At a January 6th, 2020 VA examination, the Veteran reported daily back pain at a 5 of 10 and an 8 of 10 while bending and lifting. He also reported weekly flare-ups lasting all day and functional loss such that he avoided heavy lifting and repetitive bending. Initial range of motion revealed forward flexion to 40 degrees, with pain; extension to 10 degrees; right lateral flexion to 20 degrees; left lateral flexion to 20 degrees; right lateral rotation to 30 degrees; and left lateral rotation to 30 degrees. The range of motion contributed to functional loss such that the Veteran could not bend over at the waist and pick up objects off the floor. There was objective evidence of moderate localized pain of the spine, on the left side more than the right side, directly related to IVDS. There was no evidence of pain with weight-bearing. Observed repetitive use testing revealed no additional loss of function or range of motion. The examination was not being conducted during a flare-up and the examiner noted that the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss during flare-ups. Pain was noted to cause functional loss and the examiner described pain in terms of range of motion as forward flexion to 40 degrees, with pain; extension to 10 degrees; right lateral flexion to 20 degrees; left lateral flexion to 20 degrees; right lateral rotation to 30 degrees; and left lateral rotation to 30 degrees. The examiner noted that the Veteran develops increasing pain with repetitive bending and lifting which caused him to slow down with increasing pain. He could not do repetitive lifting and avoids repetitive bending. Muscle strength testing was normal, and the Veteran did not have muscle atrophy, radiculopathy, ankylosis, or any other neurologic abnormalities. The examiner indicated that the Veteran did not have IVDS. There was objective evidence of pain during non-weight bearing, and passive range of motion revealed range of motion values the same as active range of motion. Based, in part, on the January 6th, 2020 VA examination, a June 2020 rating decision increased the Veteran's service-connected back disability evaluation from 10 percent to 40 percent, effective January 6, 2020, the date of the most recent VA examination. 38 C.F.R. § 4.71a; DC 5242, 5243. Given the above, the Board finds that the Veteran is entitled to an initial rating of 40 percent, but not higher, prior to January 6, 2020. Specifically, the Board notes that the record contains no adequate VA examinations prior to January 6, 2020 for rating purposes. Indeed, both the October 2013 VA examination and the July 2016 VA examination do not comply with the requirements of Sharp, as they do not offer opinions as to the Veteran's range of motion during flare-ups. Also, a remand to obtain a retrospective opinion regarding the past severity of the Veteran's back disability prior to January 6, 2020 is not warranted, as such an opinion could provide nothing more than speculation as to the severity of the Veteran's low back disability for that portion of the appeal period. See Soyini v. Derwinski, 1 Vet. App. 541, 546 (1991) (concluding that remand is unnecessary where it "would result in this Court's unnecessarily imposing additional burdens on the [Board] with no benefit flowing to the veteran"). Thus, in consideration of the foregoing, and resolving all reasonable doubt in the Veteran's favor, the Board finds that, for the period on appeal prior to January 6, 2020, an increased evaluation of 40 percent, but no greater, for the Veteran's back disability is warranted in this case. See Gilbert, 1 Vet. App. at 53-54. The Board finds a rating in excess of 40 percent is not warranted because, at no time during this portion of the appeal period, has the Veteran's back disability more nearly approximated unfavorable ankylosis of the entire thoracolumbar spine. The evidence of record simply does not support such findings. Likewise, the Veteran's IVDS was noted to be clinically insignificant, which does not support the criteria for a higher evaluation based on IVDS symptomatology. Separately, for the portion of the appeal period on appeal, the medical evidence does not show that the Veteran has neurological manifestations resulting from his back condition that would warrant a separate rating. While the Veteran reported intermittent left leg numbness and tingling during the June 2016 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 normal. Accordingly, a disability rating of 40 percent, but no higher, for the service-connected degenerative disc disease with IVDS (formerly evaluated as strain) of the thoracolumbar spine prior to January 6, 2020 is warranted. THERESA M. CATINO 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.