Citation Nr: 21064140 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 16-34 445 DATE: October 19, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for lumbar spine degenerative disc disease (lumbar spine disability) prior to October 26, 2019 is denied. Entitlement to an initial rating in excess of 20 percent for the lumbar spine disability since October 26, 2019 is denied. REMANDED Entitlement to a separate rating(s) for radiculopathy of the bilateral lower extremities associated with the lumbar spine disability is remanded. FINDINGS OF FACT 1. Prior to October 26, 2019, considering pain and resultant functional impairment including during flare-ups, the Veteran's service-connected lumbar spine disability was not productive of forward flexion greater than 30 degrees but not greater than 60 degrees, combined motion not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. 2. Since October 26, 2019, considering pain and resultant functional impairment including during flare-ups, the Veteran's lumbar spine disability is not productive of forward flexion 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. CONCLUSIONS OF LAW 1. Prior to October 26, 2019, the criteria for an initial rating in excess of 10 percent for the service-connected lumbar spine disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5243. 2. Since October 26, 2019, the criteria for a rating in excess of 20 percent for the service-connected lumbar spine disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1981 to September 1985, and from November 1986 to November 2002. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO or AOJ). This case was previously before the Board in May 2021, when it was remanded to obtain outstanding relevant private treatment records, to specifically include the Veteran's private physical therapy records. In May 2021 and June 2021 correspondence, the AOJ attempted to assist the Veteran in retrieving his private treatment records. However, the Veteran did not return the enclosed VA Form 21-4142, Release of Information Form or the VA Form 21-4142a, General Release for Medical Provider Information. Since the Veteran did not respond to these requests and has not identified any additional medical evidence in support of his claim, no further assistance on the part of VA is necessary. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1993). There has been substantial compliance with the terms of the Board remand. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her 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. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations at any point during the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Service connection for the lumbar spine disability was awarded in the November 2013 rating decision. An initial 10 percent rating was assigned effective May 16, 2012, under Diagnostic Code 5242-5237. In July 2020, the Veteran's lumbar spine disability was assigned an increased 20 percent rating effective October 26, 2019, under Diagnostic Code 5243. The Veteran maintains that his lumbar spine disability is more severe than what is contemplated by the currently assigned evaluations. See November 2014 VA Form 21-0958. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the Veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9 (b) (2) (now as noted renumbered as 38 C.F.R. § 20.904 (d) (2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran's claim. The Veteran's lumbar spine disability is currently rated under Diagnostic Code 5243 and the general rating formula for diseases and injuries of the spine. The General Rating Formula for Diseases and Injuries of the Spine evaluates disabilities for Diagnostic Codes 5235 to 5243. The rating criteria for Diagnostic Codes 5235 to 5243 and the General Rating Formula for Diseases and Injuries of the Spine were not revised. However, Diagnostic Codes 5242 and 5243 were revised as follows: Diagnostic Code 5242, which contemplates degenerative arthritis, now includes degenerative disc disease, and Diagnostic Code 5243, which contemplates IVDS, is to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root. Under the General Rating Formula, with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply. A 20 percent rating is warranted 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 is not greater than 120 degrees; or if there is 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 rating is warranted if forward flexion of the thoracolumbar spine is to 30 degrees or less or if there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A maximum 100 percent rating is warranted if there is unfavorable ankylosis of the entire spine. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar or entire spine is fixed in flexion or extension and the ankylosis results in certain enumerated impairments. 38 C.F.R. § 4.71a, General Formula for Rating Diseases and Injuries of the Spine, Note (5). IVDS can be evaluated under the general rating formula or the specific formula for rating IVDS based on incapacitating episodes in Diagnostic Code 5243, 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. Effective February 7, 2021, Diagnostic Code 5243 is to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and non-weightbearing and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The provisions of 38 C.F.R. § 4.40 and §4.45 concerning functional loss due to pain, fatigue, weakness, or lack of endurance, incoordination, and flare-ups have been considered and applied under 38 C.F.R. § 4.59. DeLuca v. Brown, 6 Vet. App. 321 (1993); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The criteria for a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis. Chavis v. McDonough, 34 Vet. App. 1 (2021). The evidence includes a May 2013 private treatment record indicating the Veteran had requested a referral for chronic back pain. During an October 2013 VA spine examination, the Veteran reported his back condition has slowly worsened over time. He described symptoms of constant shooting pain that radiates to the bilateral buttocks that is aggravated with prolonged sitting, bending, or "overworking" and alleviated by medication and a support brace. He reported participating in physical therapy but denied any invasive procedures or surgery for this condition. He reported intermittent paresthesias of the lateral toes of the bilateral feet precipitated by prolonged sitting and laying down at night. The Veteran denied experiencing flare-ups. He demonstrated flexion, with pain, limited to 70 degrees. Combined range of motion (ROM) of the thoracolumbar spine was to 200 degrees. The Veteran was able to perform repetitive-use testing with three repetitions with no additional limitation in ROM of the thoracolumbar spine. The examiner noted the Veteran had functional loss/impairment of the thoracolumbar spine due to pain on movement. He had no localized tenderness or pain to palpation and no guarding or muscle spasm. The examiner noted normal muscle strength, hypoactive reflex, and normal sensory exam. The examiner indicated the Veteran does not have radicular pain or signs or symptoms of radiculopathy, and no neurologic abnormalities. The examiner opined the Veteran does have IVDS, but that he has not had any incapacitating episodes over the past twelve months. The examiner noted the Veteran did not have arthritis but Xray imaging showed narrowing of the L4-5 disc space height associated with grade 1 spondylolisthesis and spondylolysis at that level. A February 2014 private treatment record indicates a history of peripheral polyneuropathy and degenerative spine and disc disease. The Veteran denied neuropathic pain, urinary bladder or bowel dysfunction, and had no gait difficulty. An April 2014 private treatment record notes diagnoses of low back pain, lumbar spondylosis without myelopathy, and acquired spondylolisthesis. The plan of treatment included epidural steroid injections before deciding to do surgery. A June 2015 VA treatment record indicates the Veteran requested consultation for pain management at which time he reported "terrible back pain and spasm." A September 2015 private treatment record documents discussion with the Veteran such that if his pain was tolerable, he could continue with conservative treatment. A September 2015 VA treatment record indicates an examination of the back showing minimal tenderness, no spasms or deformities, mildly limited flexion/extension, and negative straight leg test. This record did not note any measurements of ROM. A December 2018 MRI showed grade 1 spondylolisthesis and moderate transverse and mild bilateral foraminal encroachment at L5-S1. During an October 2019 VA spine examination, a diagnosis of degenerative disc disease of the lumbar spine was made. The examiner noted the Veteran's report of progressively worsening pain described as a dull, achy pain that radiates to the bilateral lower extremities. The Veteran reported flare-ups saying, "it gets bad sometimes." He reported that he cannot climb stairs, he has to take breaks when cutting the grass, and he has difficulty standing for prolonged periods of time. The Veteran demonstrated flexion, with pain, limited to 50 degrees. Combined ROM of the thoracolumbar spine was to 190 degrees. Pain was noted on examination that caused functional loss described as inability to bend. There was no evidence of localized tenderness or pain on palpation. There was evidence of pain with weight bearing. The Veteran was unable to perform repetitive use testing with at least three repetitions due to pain. The examiner noted that pain, weakness, fatigability, or incoordination significantly limits functional ability with repeated use over time and with flare-ups. The examiner estimated 10 degrees additional loss during flare-ups and after repetitive use in bilateral flexion (i.e. limitation of flexion to 40 degrees) and rotation resulting in a combined ROM of the thoracolumbar spine to 150 degrees. The examiner noted the Veteran does not have guarding or muscle spasms, but he does have disturbance of locomotion and interference with sitting and standing for prolonged periods. The examiner noted normal muscle strength, normal reflex, and normal sensory exam. The examiner indicated the Veteran does not have radicular pain or signs or symptoms of radiculopathy, no ankylosis, and no neurologic abnormalities. The examiner opined the Veteran does have IVDS, but that he has not had any episodes of acute signs or symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past twelve months. The examiner noted the Veteran had constant use of a cane for support with low back pain associated with degenerative disc disease. The examiner indicated that arthritis is not documented. The examiner opined there was objective evidence of pain on non-weightbearing, and that passive ROM cannot be performed or is not medically appropriate. As to each of the periods during the current appeal considered herein, the Board has considered the lay statements of the Veteran describing his pain and functional limitation related to the service-connected lumbar spine disability. He is competent to report the sensations and resultant limitation and there is no evidence that he is not credible in this regard. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Here, the Veteran has had treatment and pain management for his lumbar spine disabilities. He also experiences functional limitation as evidenced by the October 2013 and October 2019 VA spine examinations. Also, as to each of the periods during the current appeal considered herein, a separate 10 percent rating under Diagnostic Code 5003 for arthritis of the lumbar spine may not be assigned, as this would result in compensating twice for manifestations of the same disability, limited motion, in violation of the rule against pyramiding. 38 C.F.R. § 4.14. For the period prior to October 26, 2019, the orthopedic manifestations of the Veteran's service-connected lumbar spine disability did not approach the severity contemplated for a rating in excess of 10 percent. The Board has considered in its analysis the Veteran's pain and resultant functional impairment and his very worst ROM demonstrated or estimated on examination. See Mitchell, 25 Vet. App. 32, 43; DeLuca, 8 Vet. App. 202, 206-07; 38 C.F.R. §§ 4.40, 4.45. The evidence of record consists of the October 2013 VA spine examination, wherein the Veteran demonstrated forward flexion to 70 degrees with pain, and combined ROM of the thoracolumbar spine to 200 degrees with pain on movement resulting in functional loss or impairment of the spine, but without localized tenderness or pain to palpation for joints/soft tissue. Muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis was not shown. Contemporaneous treatment records do not any worse results. While the Board notes that the Veteran has a diagnosis of IVDS based on the October 2013 VA spine examination, an increased rating is not warranted under the criteria pertaining to IVDS. A 20 percent rating contemplates incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past twelve months. A 40 percent rating contemplates incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months. A 60 percent rating contemplates incapacitating episodes having a total duration of at least six weeks during the past twelve months. An "incapacitating episode" is a period of acute signs and symptoms due to IVDS that requires bedrest prescribed by a physician and treatment by a physician. A higher (20 percent) rating is unavailable under the rating criteria for IVDS for the applicable period. While the October 2013 VA examiner stated that he has IVDS, the Veteran has not experienced any incapacitating episodes of IVDS. Treatment records do not otherwise indicate that clinicians have prescribed bed rest at any time during the period prior to October 26, 2019. Accordingly, a rating in excess of 10 percent is not warranted under the criteria for rating IVDS based on incapacitating episodes. For the period since October 26, 2019, considering the evidence of record, the Board finds that the orthopedic manifestations of the Veteran's service-connected lumbar spine disability do not approach the severity contemplated for a rating in excess of 20 percent under the pertinent regulatory criteria. The Board has considered in its analysis the Veteran's pain and resultant functional impairment, and his very worst ROM demonstrated or estimated on examination. See Mitchell, 25 Vet. App. 32, 43; DeLuca, 8 Vet. App. 202, 206-07; 38 C.F.R. §§ 4.40, 4.45. The evidence of record for this period includes the October 2019 VA spine examination. At that time, the Veteran's worst ROM, considering his pain and resultant functional limitation, was estimated by the examiner to be forward flexion to 50 degrees after repetitive use over time or during a flare-up. Favorable ankylosis was not found. Moreover, the Veteran does not contend that he experienced unfavorable ankylosis or even functional ankylosis of the entire thoracolumbar spine at any point. His orthopedic manifestations, even considering his most severe motion demonstrated or estimated and thus considering his pain and resultant functional limitation, did not approach the severity contemplated for a 40 percent rating. Further, while the October 2019 VA examiner stated that the Veteran has IVDS, the Veteran has not experienced any incapacitating episodes of IVDS. Treatment records do not otherwise indicate that clinicians have prescribed bed rest at any time during the period since October 26, 2019. Accordingly, a rating in excess of 20 percent is not warranted under the criteria for rating IVDS based on incapacitating episodes. With respect to disabilities of the spine, VA regulations provide that associated objective neurological abnormalities are to be evaluated separately. The Veteran's complaints of radiculopathy into the lower extremities is discussed in the Remand section below. No other neurological disorders such as bladder and bowel impairment have been shown. In sum, based on the foregoing, the preponderance of the evidence is against an initial rating in excess of 10 percent for the service-connected lumbar spine disability prior to October 26, 2019, and a rating in excess of 20 percent thereafter. The Board finds the benefit of the doubt doctrine is thus not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. The Veteran's claim is, therefore, denied. REASONS FOR REMAND 1. Entitlement to a Separate Rating(s) for Radiculopathy of the Bilateral Lower Extremities Associated with the Lumbar Spine Disability is Remanded. The General Formula for Diseases and Injuries of the Spine also, in pertinent part, provides for evaluation of any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a. The evidence is unclear as to whether the Veteran has radiculopathy of his lower extremities associated with the lumbar spine disability. Although the October 2013 and October 2019 VA spine examinations indicated the Veteran did not have radiculopathy, the evidence of record includes a July 2013 VA treatment record noting evidence of polysensory motor neuropathy of the bilateral lower extremities; a June 2015 VA treatment record noting that it is "unclear if there was any component of radiculitis;" and an August 2015 private treatment record noting a diagnosis of radiculopathy based on a June 2015 encounter date. As such, the Board finds that the Veteran should be afforded a neurological examination to assist in determining the nature and severity of any diagnosed radiculopathy associated with the service-connected lumbar spine disability. The matters are REMANDED for the following action: Afford the Veteran an appropriate VA examination to assist in determining the nature and severity of any lumbar spine radiculopathy. For each neurological manifestation diagnosed, the examiner must specifically identify the nerve that is involved and indicate whether there is complete paralysis. If incomplete paralysis is found, the examiner should indicate the severity of the symptoms. The examiner must address the July 2013 and June 2015 VA treatment records indicating evidence of polysensory motor neuropathy of the bilateral lower extremities, and the August 2015 private treatment record noting a diagnosis of radiculopathy. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith, 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.