Citation Nr: 21065589 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 17-57 282 DATE: October 26, 2021 ORDER A rating higher than 40 percent for lumbosacral strain with intervertebral disc syndrome is denied. REMANDED A separate evaluation for bowel incontinence secondary to service-connected lumbosacral strain disability is remanded. FINDING OF FACT There is no medical or lay evidence documenting symptoms that approximate unfavorable ankylosis of the entire thoracolumbar spine or symptoms of IVDS that are characterized as causing incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. CONCLUSION OF LAW The criteria for a rating in excess of 40 percent for a recurrent lower back strain to include IVDS have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.21, 4.40, 4.45, 4.71a, Diagnostic Codes 5242-5243. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1985 to September 1988. The Veteran and his wife testified at a hearing held before the undersigned Veterans Law Judge in October 2020. This matter was previously remanded by the Board in November 2020 for further evidentiary development. While on remand, the RO granted a 100 percent rating for persistent depressive disorder, effective April 26, 2014. As that constitutes a full grant of the benefits sought, the issue is no longer on appeal. AB v. Brown, 6 Vet. App. 35. The RO also granted a 40 percent rating for lumbosacral strain with intervertebral disc syndrome and degenerative arthritis. The Board finds that there has been substantial compliance with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall). 1. Entitlement to a rating higher than 40 percent for lumbosacral strain with invertebral disc syndrome. Legal Criteria Increased Ratings for Spine Disabilities Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating is required. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA adjudicators must consider whether to assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. The Court since has extended this practice even to established ratings, not just initial ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Finally, for disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45. In DeLuca, it was held that when the pertinent diagnostic criteria provide for a rating on the basis of loss of range of motion, determinations regarding functional losses are to be "'portray[ed]' (38 C.F.R. § 4.40) in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." Id. at 206. The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Moreover, the United States Court of Appeals for Veterans Claims (Court) in Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016) held that the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to the evaluation of musculoskeletal disabilities under Diagnostic Codes predicated on range of motion measurements. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability 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. 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 provided for forward flexion of the thoracolumbar spine 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 the entire spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2) (see also Plate V) provides that, for VA compensation purposes, normal forward flexion of the lumbar 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. 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 lumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range-of-motion. Note (3) provides that, in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range-of-motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range-of-motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range-of-motion is normal for that individual will be accepted. Note (4) instructs to round each range-of-motion measurement to the nearest five degrees. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire lumbar 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. Under the IVDS Rating Formula (Diagnostic Code 5243), a 10 percent disability rating is assigned with incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months; a 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a maximum 60 percent disability rating is assigned with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) provides that an incapacitating episode is 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. Note (2) provides that if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment should be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. Under the general rating formula for spine disabilities, a 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. There is no medical or lay evidence documenting symptoms that approximate unfavorable ankylosis of the entire thoracolumbar spine during this period on appeal. Alternatively, the Veteran's IVDS was never characterized as causing incapacitating episodes having a total duration of at least 6 weeks during the past 12 months which would warrant a higher 60 percent rating under DC 5243. The Board has also considered the impact of functional loss on the Veteran's range of motion of the thoracolumbar spine during this period. Although, November 2015 and January 2021 VA examiners found functional loss due to factors such as pain and lack of endurance after repeated use and during flare-ups, the totality of the evidence does not suggest that range of motion would change to the degree required for a higher rating (i.e. symptoms approximating unfavorable ankylosis of the entire thoracolumbar spine). See Chavis v. McDonough,34 Vet. App. 1 (2021). Rather, the Board finds that the Veteran's reported functional loss/impairment in the form of an inability sit or stand for long periods, maintain balance and ambulate well even with use of a cane, and bend or lift, etc. for a long time are adequately encompassed by the assigned 40 percent rating for limitation of forward flexion of the thoracolumbar spine. In sum, a rating in excess of 40 for the Veteran's low back disability is not warranted because the evidence does not show that the Veteran's functional loss, even during flare-ups, more closely approximates ankylosis. Chavis. REASONS FOR REMAND 2. A separate evaluation for bowel incontinence secondary to service-connected lumbosacral strain disability is remanded. During a January 2021 VA spine examination, the examiner answered "no" in responding to whether the Veteran's had any other neurological abnormalities related to his thoracolumbar spine condition. However, the examiner also noted that the Veteran experiences symptoms of bowel incontinence related to his service-connected spine injury. Specifically, the examiner documented that the Veteran's lumbosacral strain caused functional impairment, including increased bowel movements as well as pain with bowel movements, and that the condition would prevent him from completing work without frequent breaks. Remand is necessary for a VA examination to determine the etiology and severity of the Veteran's bowel incontinence. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) for his bowel incontinence. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Does the Veteran have a bowel incontinence condition that is at least as likely as not related to the Veteran's service-connected low back condition? STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Booker 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.