Citation Nr: 21064469 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 17-13 019 DATE: October 20, 2021 ORDER Entitlement to an increased disability evaluation for residuals of a low back injury with degenerative disc disease of the lumbosacral spine, currently rated as 20 disabling, is denied. FINDING OF FACT For the entire rating period on appeal, the Veteran's residuals of a low back injury with degenerative disc disease of the lumbosacral spine is manifested by pain on motion, with functional loss due to pain upon movement. Forward flexion is limited to no worse than 45 degrees, and the Veteran does not experience incapacitating episodes or ankylosis. CONCLUSION OF LAW The criteria for a disability evaluation in excess of 20 percent for residuals of a low back injury with degenerative disc disease of the lumbosacral spine have not been met. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235 to 5243 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from August 1971 to February 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In November 2018 and March 2021, the Board remanded the Veteran's claim to the Agency of Original Jurisdiction (AOJ) for additional development. A supplemental statement of the case was most recently issued in August 2021. The case has since been returned to the Board for appellate review. The Board finds that there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability evaluations are determined by application of the criteria set forth in the 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. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In addition, when assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. When evaluating musculoskeletal disabilities, VA must consider whether a higher evaluation is warranted, where the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups. See 38 C.F.R. § § 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Nevertheless, pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Moreover, functional impairment must be supported by adequate pathology. Id.; Johnson v. Brown, 9 Vet. App. 7, 10 (1996) (both citing to 38 C.F.R. § 4.40). Notably, during the appeal period, changes were made to 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243, and 5257. Effective February 7, 2021, VA amended its regulations governing the schedule of rating musculoskeletal disabilities. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243). Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 1. Entitlement to an increased disability evaluation for residuals of a low back injury with degenerative disc disease of the lumbosacral spine, currently rated as 20 disabling, The Veteran is currently assigned a 20 percent disability rating for his residuals of low back injury with degenerative disc disease of the lumbosacral spine pursuant to the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5242. See 38 C.F.R. § 4.20. Lumbosacral and cervical spine disabilities are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine ("general rating formula"). 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. Intervertebral disc syndrome (IVDS) is rated under the General Rating Formula for Rating Diseases and Injuries of the Spine or the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Formula for Rating IVDS Based on Incapacitating Episodes provides for ratings from 10 to 60 percent based on the frequency and duration of incapacitating episodes, defined in Note 1 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. The maximum 60 percent schedular rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the previous 12 months. The Board notes that effective February 7, 2021, the spine regulations were amended to state that Diagnostic Code 5243 governing intervertebral disc syndrome should only be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root; and that Diagnostic Code 5242 should apply to all other disc diagnoses. See 85 Fed. Reg. 76462 (Nov. 30, 2020) (effective 2/7/2021). The Board notes that this change does not impact the evaluation in this case as the Veteran does not have any evidence of incapacitating episodes that would warrant a compensable rating under Diagnostic Code 5243. The Notes following the General Rating Formula for Diseases and Injuries of the Spine 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. Note 2 provides that, for VA compensation purposes, the combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. Note 4 provides that range of motion measurements are to be rounded to the nearest five degrees. Note 5 defines unfavorable ankylosis as a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note 6 provides that disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. According to the general rating formula, a 20 percent evaluation is to be assigned 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 evaluation is to be assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is to be assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is to be assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5235 for vertebral fracture or dislocation; 5236 for sacroiliac injury and weakness; 5237 for lumbosacral strain; Diagnostic Code 5238 for spinal stenosis; Diagnostic Code 5239 for spondylolisthesis or segmental instability; Diagnostic Code 5240 for ankylosing spondylitis; Diagnostic Code 5241 for spinal fusion; Diagnostic Code 5242 for degenerative arthritis of the spine; and Diagnostic Code 5243 for intervertebral disc syndrome. The Veteran contends that he is entitled to a higher rating because his current disability evaluation does not property account for the severity of his symptoms. After a review of all the evidence, the Board finds that the Veteran's disability picture more nearly approximates the criteria for the currently assigned 20 percent disability evaluation for his service-connected residuals of low back injury with degenerative disc disease of the lumbosacral spine. At the March 2015 VA examination, the Veteran had forward flexion to 85 degrees, with extension to 25 degrees, lateral flexion to 25 degrees bilaterally, and lateral rotation to 25 degrees bilaterally. There was no muscle spasm, guarding, atrophy, or tenderness on palpation; there was also no evidence of ankylosis. The Veteran reported pain on motion that caused functional loss. Repetitive use testing did not show an additional loss of range of motion. The VA examiner found that the Veteran's functional loss due to flare-ups or repeated use included excess fatiguability and pain on motion. The VA examiner noted that the Veteran has intervertebral disc syndrome, but does not experience incapacitating episodes. The VA examiner also noted that the Veteran occasionally uses a cane to aid with ambulation. At the October 2019 VA examination, the Veteran had forward flexion to 45 degrees, with extension to 5 degrees, lateral flexion to 10 degrees bilaterally, and lateral rotation to 20 degrees bilaterally. There was no evidence of muscle spasm, guarding, atrophy, or ankylosis; muscle strength was normal. The Veteran did not have pain on weight-bearing. The VA examiner was unable to estimate the Veteran's manifestations during a flare-up, but noted that the Veteran had pain on motion in all directions. The Veteran described his functional loss as pain with lifting, and prolonged sitting, standing, and walking. The VA examiner indicated that the Veteran's functional loss was decreased motion due to pain. The VA examiner noted that the Veteran has intervertebral disc syndrome, but does not experience incapacitating episodes. The VA examiner also noted that the Veteran occasionally uses a brace to aid with ambulation. At the August 2021 VA examination, the Veteran had forward flexion to 60 degrees, extension to 20 degrees, right and left lateral flexion to 20 and 30 degrees, respectively, and right and left lateral rotation to 25 degrees. The Veteran reported that his flare-ups are precipitated by walking more than 15 minutes or prolonged standing. The Veteran described his flareups as occurring daily, lasting 1 2 hours; he reported that his flareups were characterized by increased, sharp lower back pain, with pain and numbness radiating down to leg/toes, and that flareups interfered with daily activities. Upon repetitive motion, he had pain on motion; the VA examiner estimated that the Veteran's flareups resulted in forward flexion to 50 degrees, extension to 10 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 15 degrees; the Veteran had pain on weightbearing and non-weightbearing. The VA examiner noted that the Veteran had functional loss due to pain on motion, fatigability, and weakness, and that the Veteran had abnormal gait due to instability of station and disturbance of locomotion, but that the Veteran did not experience ankylosis, muscle atrophy, guarding, or tenderness to palpation. The VA examiner indicated that the Veteran had intervertebral disc syndrome, but did not experience incapacitating episodes. VA treatment records dated throughout the rating period on appeal reflect that the Veteran was treated for back pain, without tenderness to palpation. The lay and medical evidence demonstrates that the Veteran's symptoms do not result in additional functional limitation to a degree that would support a rating in excess of a 20 percent disability rating at any time during the appeal period. The evidence shows that the Veteran experiences forward flexion of the thoracolumbar spine which is better than 30 degrees which is required for a higher rating based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5242. Here, the lay evidence has been considered; however, that evidence when accepted as correct does not establish that he is functionally limited to 30 degrees or less forward flexion. Further, the evidence does not show favorable or unfavorable ankylosis of the entire thoracolumbar spine, or its equivalent due to functional loss, during the rating period on appeal. Additionally, the Veteran does not experience incontinence or bowel complaints as a result of his residuals of low back injury with degenerative disc disease of the lumbosacral spine. The Board has considered whether additional functional impairment due to factors such as pain, weakness and fatigability demonstrate additional limitation of motion or function to warrant a higher rating. See 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca at 206-07. The evidence shows no atrophy or decrease in strength. To the extent that the Veteran claims that his pain upon motion is the equivalent of limited motion, the Board finds that the Veteran's subjective complaints of pain have been contemplated in the current rating assignment, as the current rating is based on the objectively demonstrated reduced motion and impairment. The Board observes that the August 2021 VA examiner indicated that a flare-up would limit the Veteran's range of motion to 50 degrees forward flexion; the March 2015, October 2019, and August 2021 VA examination reports that the Veteran's functional loss was limited to decreased range of motion and pain on motion. See Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). See also Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). Moreover, the available medical findings do not show that painful motion, limitation of motion on repetitive use testing, or pain or limitation of motion on active motion/passive motion/in weight-bearing/non weight-bearing resulted in functional loss warranting the assignment of any higher evaluation for the lumbar spine during the entire appeal period. See Correia v. McDonald, 28 Vet. App. 158 (2016). To the extent that the Veteran reports flare-ups limiting his ability to lift objects, stand, sit, and walk, the Board finds that the Veteran's flare-ups do not occur frequently enough to demonstrate that the evidence more nearly approximates a disability picture with forward flexion of the spine limited to 30 degrees or less. 38 C.F.R. §§ 4.7, 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Therefore, the lay and medical evidence demonstrates that the Veteran's symptoms do not result in additional functional limitation to a degree that would support a rating in excess of a 20 percent disability rating. With respect to a higher evaluation based on incapacitating episodes under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, as noted earlier, the Board acknowledges that the Veteran has intervertebral disc syndrome. However, the Veteran's VA examination reports reflect that his IVDS is not productive of incapacitating episodes requiring physician prescribed best rest having a total duration of at least 4 weeks during a 12-month period as contemplated by a higher evaluation. Review of the Veteran's treatments record also do not reveal any periods of physician prescribed bed rest as a result of his residuals of low back injury with degenerative disc disease of the lumbosacral spine. With consideration of the provisions of Note (1) of the General Rating Formula for Diseases and Injuries of the Spine, the Board notes that the Veteran is in receipt of separate disability evaluations for his right and left lower extremity neurological deficits. As such, the Board finds that the evidence of record reveals manifestations consistent with the currently assigned 20 percent evaluation for the entire rating period on appeal for residuals of low back injury with degenerative disc disease of the lumbosacral spine. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Brokowsky, 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.