Citation Nr: 21066044
Decision Date: 10/28/21	Archive Date: 10/28/21

DOCKET NO. 15-34 503
DATE: October 28, 2021

ORDER

An increased rating of 40 percent (but no higher) for the Veteran's service-connected intervertebral disc syndrome (IVDS), previously characterized as a lumbosacral strain, is granted.

FINDING OF FACT

Throughout the appeal, affording the Veteran the benefit of doubt, the Veteran's IVDS has more nearly approximated forward flexion of the thoracolumbar spine of 30 degrees or less. It has not been characterized by unfavorable ankylosis of the entire thoracolumbar spine. Additionally, the Veteran has never been prescribed bed rest. 

CONCLUSION OF LAW

The criteria have been met for a disability rating of 40 percent for IVDS of the lumbar spine. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5243.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from October 1984 to August 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision that continued a 20 percent rating for IVDS. VA received the Veteran's claim in January 2013.

In August 2018, the Board remanded the case for additional development. On May 13, 2020, the Board denied a rating in excess of 20 percent for (IVDS) of the low back (previously claimed as lumbosacral strain).

On April 21, 2021, The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (CAVC). On April 26, 2021, CAVC granted a Joint Motion for Remand (JMPR) regarding the May 2020 Board denial of a rating in excess of 20 percent and remanded the claim to the Board for compliance with the directives specified by the JMPR.

Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2; and resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3. Where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Legal Criteria

When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability, and incoordination. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (citing 38 C.F.R. § 4.40). 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). Pain, in and of itself, that does not result in additional functional loss does not warrant a higher rating; the Court held that pain alone does not constitute functional loss but is just one fact to be considered when evaluating functional impairment. Id.

The Veteran's IVDS has been rated under Code 5243 part of the General rating Formula for Diseases and Injuries of the Spine, which provide the following criteria for rating the disability A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, for the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, for 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 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine. Id. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine limited to 30 degrees or less, or, for favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Code 5235, 5243.

Any associated objective neurologic abnormalities are to be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Code 5242, Note (1). The Veteran is currently rated for service-connected for radiculopathy of the left and right lower extremities.

For VA compensation purposes, "unfavorable ankylosis" is 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. 

For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, normal extension is zero to 30 degrees, normal left and right lateral flexion is zero to 30 degrees, and normal left and right lateral rotation is zero to 30 degrees. 38 C.F.R. § 4.71a, Code 5242, Note (2). All measured ranges of motion are to be rounded to the nearest five degrees. 38 C.F.R. § 4.71a, Code 5242, Note (4).

Under DC 5243, intervertebral disc syndrome (IVDS) may be rated under either the General Formula or under the Formula for Rating IVDS Based on Incapacitating Episodes. Determination on which of the two formulas to use depends on which of the formulas more proximately relates to the Veteran's symptoms. Where either formula can be used, the Veteran will be rated under the formula which results in a higher rating. Under the Formula for Rating IVDS, incapacitating episodes having a total having a total duration of at least 6 weeks during the past 12 months warrant a rating of 60 percent. Incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months warrant a rating of 30 percent. Incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months warrant a rating of 20 percent. Incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months warrant a rating of 10 percent. 

For purposes of evaluating under DC 5243, 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. 

Consideration of a higher rating for functional loss, to include during flare-ups, due to the factors listed above is warranted for Diagnostic Codes predicated on limitation of motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; See DeLuca v. Brown, 8 Vet. App. 202 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. 38 C.F.R. § 4.45. Pain itself does not constitute functional loss, and painful motion does not constitute limited motion for the purposes of rating under DCs pertaining to limitation of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pain must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance in order to constitute functional loss. Id.

Factual Background

In December 2013 the Veteran was examined by a VA examiner after she indicated that her back disability had increased in severity. It was at that time that she was diagnosed with lumbar degenerative joint disease. During the examination the Veteran stated that it not only became more difficult for her to sit, but also, her pain increased. In more detail the Veteran stated that she had been experiencing painful flare-ups in the form of spasms, shooting pain, and numbness and tingling in her legs. The Veteran stated that this made walking and other daily tasks more difficult. During her examination, the Veteran was not diagnosed with ankylosis. 

The Veteran's range of motion (ROM) was tested with the use of a goniometer. The examiner noted that the Veteran's forward flexion was limited to 55 degrees, with ROM being limited to 145 degrees. The examination indicated that the Veteran experienced pain for all endpoints of motion. Following repetitive use tests which she was unable to perform, the Veterans' forward flexion was remeasured and found to be limited to 40 degrees. The examination noted that the Veteran suffered from functional impairment as indicated by less movement, weakened movement, pain on movement, disturbance of locomotion, and interference with sitting, standing, and/or weightbearing. The examination also noted that the Veteran had spasms, as well as guarding, which in turn caused an abnormal gait. 

In terms of incapacitating episodes, the examination stated that the Veteran had not experienced such episodes. This said, during the examination the Veteran stated that she experienced functional impairment in the form of pain during work. The Veteran stated that to help reduce the pain she would walk. The Veteran also stated that she used a lumbar pillow while at work. The Veteran also stated that on occasions when the pain became severe enough, she would go home or make an appointment with her chiropractor. 

During the same December 2013 examination, the examiner stated that the Veteran had additional limitation in terms of functionality during flare-ups or repeated use over time. More specifically, the examiner noted that the Veteran had additional pain, weakness, and incoordination. Importantly, the examiner stated because the Veteran's back would give out, the Veteran is unable to move, and the Veteran's back "crumbles up." The examiner she was unable to provide a degree of additional ROM during flare-ups. 

In May 2015, the Veteran was provided an additional VA examination, where she was diagnosed with IVDS. During that examination the Veteran stated that to treat her back issues, she has seen one or more chiropractor on a regular basis for the past 27-years. The Veteran described this treatment as temporary. The Veteran also stated that her back would "go out during the simplest of tasks including brushing her teeth, sitting down, driving, sleeping in bed, or getting up from the toilet." The Veteran also stated that when she had flare-ups, she would be bed ridden with an inability to move. The Veteran stated she needed assistance with toileting and getting dressed. 

In terms of the objective findings, she was not diagnosed with ankylosis. Turning thus to the Veteran's ROM, again a goniometer was used. Initial testing, as well as repetitive use testing indicated that the Veteran's forward flexion was limited to 40 degrees. In terms of her functional loss, the examination noted less movement than normal, pain on movement disturbance on locomotion and interference with sitting, standing and / or weight-bearing. The examination also noted muscle spasms with muscle guarding resulting in an abnormal gait. The Veteran also experienced pain on the endpoints of motion. This said, the examiner also noted that the Veteran suffered from IVDS, which resulted in less than a one-week duration of incapacitating episodes during the prior 12 months. On the other hand, the Veteran stated that her back disability caused her to miss 12 or 13 days of work within the last year. The Veteran also stated that she still had issues sitting for long periods of time. The Veteran also stated she would often have to change positions, stretch, or use ice to alleviate her back issues.

Back to the examiner's notes the examiner stated that the Veteran suffered from contributing factors of pain, weakness, fatigability and/or incoordination, as well as additional limitation of functional ability, during flare-ups or repeated use over time. The examiner explicitly stated that estimation of ROM during flare-ups would require "resorting to speculation" given that the Veteran was not having a flare-up when examined. This said, the examiner emphasized that based on the Veteran's subjective reports that she was bed ridden with an inability to move during flare-ups, it could be estimated that she had no ROM for all ranges during flare-ups. 

The Veteran underwent a final VA examination in June 2019. The Veteran provided a statement in July 2019 asserting that June 2019 VA examination was inadequate because the examiner failed to conduct range of motion tests or use a goniometer. The June 2019 examination lead to a Board decision in May 2020. That decision denied the Veteran a rating higher than 20 percent for her back disability. In April 2021, the Veteran through her attorney, appealed the Board decision to (CAVC) Also in April 2021, (CAVC), issued a Joint Motion for Partial Remand (JMPR), and vacated the Board's decision to deny entitlement to a rating higher than 20 percent for IVDS. 

Turning to the June 2019 VA examination, the Veteran stated that she was in constant pain, but that she did not experience flare-ups. The Veteran stated that due to her back pain she must limit her activities in anticipation of pain. The Veteran also stated that she was unable to stand or walk for more than 15-minutes at a time. During her initial ROM testing, her forward flexion was limited to 65 degrees, with pain on all ROMs. The examiner noted no additional loss of ROM after repetitive use. It is important to note that the Veteran was not examined after repeated use over time. Nevertheless, the examiner stated that the findings were medically consistent with the Veteran's reported limitation after such use. The examiner also noted that pain itself caused limitation but found no additional ROM loss. Guarding and muscle spasms leading to an abnormal gait was also noted. The Veteran was not diagnosed with ankylosis. The Veteran was however found to have IVDS with incapacitating episodes of a total duration of more than 2 weeks but less than 4 weeks. The Veteran reported she was recently out for 3-weeks due to severe back pain. The Veteran stated that this pain caused her to suffer from limitations of basic care needs. Finally, the examiner noted the Veteran uses a cane on a constant basis, she has pain on non-weight-bearing, and her passive ROM could not be tested.

In addition to the three VA examinations, the Veteran also provided the Board with medical records from her private chorioptic treatment. Most notably, in January 2014, the Veteran's chiropractor noted the Veteran's forward flexion in the lumbar spine was limited to "28+" degrees. In May 2017 the Veteran saw a different chiropractor then the one from 2014. On May 11, 2017, and again on May 15, 2017 and finally on May 18, 2017 the Veteran's ROM in her lumbosacral spine was "severely restricted." More specifically, she was found to suffer from a ROM of more than 60% loss of flexion. This would indicate that the Veteran had a reduced flexion of at least 36 degrees. It is important to note that these examinations were done when the Veteran was not having flare-ups. 

Analysis

Based on a review of the evidence, the Board has determined that a 40 percent rating is warranted for the Veteran's service-connected IVDS.

In the Veteran's January 2014 chiropractic note, her forward flexion was limited to less than 28 degrees or more. This examination supports granting the Veteran a 40 percent rating due to the fact that his flexion was rated at 30 degrees or less. Additionally, during her 2015 VA examination, the Veteran stated that she has been under the care of a chiropractor for the past 27 years. This includes but is not limited to the chiropractor who measured her forward flexion at 28+ degrees. The Veteran's medical bills from the 2014 chiropractor span a period of at least a year. The fact that the Veteran was under the care of her 2014 chiropractor for at least a year, based on the bills, strengthens the Veteran's case. See White v. Principi, 243 F.3d 1378, 1380-81 (Fed. Cir. 2001) (the Board may consider a lengthy treating relationship along with all the other evidence when assigning probative weight). 

Additionally, although neither the December 2013 nor May 2015 VA examiners were able to provide additional degrees of ROM during the Veteran's flare-ups, the examinations are nonetheless adequate. When conducting evaluations for musculoskeletal disabilities, VA examiners are obligated to inquire whether there are periods of flare-ups and, if the answer is yes, to state their "severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, 'per [the] veteran,' to what extent, if any, they affect functional impairment." See Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017). The Court further explained that, in the event an examination is not conducted during a flare-up, the "critical question" in assessing the adequacy of the examination was "whether the examiner was sufficiently informed of and conveyed any additional or increased symptoms and limitations experienced during flares." Id. at 16 (quoting Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011)).

Beginning with the December 2013 examination, the examiner stated she could not measure additional degrees of ROM. Nevertheless, the examiner used the Veteran's lay statements to become sufficiently informed of the Veteran's increased symptoms and limitations experienced during flares. The examiner stated that during flares, the Veteran's back goes out, causing her to "crumble up" and thus become unable to move. Again, having been sufficiently informed of the Veteran's issues during flares, the examiner indicated that the Veteran's limitations during flares affected her ability to work as well as her ability to move. Additionally, the examiner stated that during flares, she has increased pain, weakness, and fatigability, among other issues. Because the examiner provided an adequate reason as to why the Veteran's additional degree of ROM could not be measured during flares and complied with the requirements of Sharp, the examination was adequate. Further, the examiner stated that based on the Veteran's lay statements, the Veteran suffers from limitations other than pain during flares. The Board finds the Veteran competent and credible to report her symptoms and limitations when she is experiencing a flare due ot her back issues. This is because such symptoms are readily observable. See Layno v. Brown, 6 Vet. App. 465, 469 (1994).

Turning to the May 2015 VA examination the examiner explicitly stated that estimation of ROM during flare-ups would require "resorting to speculation" given that the Veteran was not having a flare-up when examined. However, the examiner made sure to account for the Veteran's lay statements of her limitations during flares. Having provided a sufficient reason as to why the examiner could not measure the Veteran's ROM, the examiner explicitly stated that during flare-ups, the Veteran must "lay down" and therefore the Veteran's ROM during such flares could be "0 degrees for all planes of motion." As noted in the rating criteria, "zero degrees" is fixation of a spinal segment in the neutral position and always represents favorable ankylosis. Because the examiner stated that the Veteran's ROM during a flare is close to zero, a 40 percent rating is appropriate for the Veteran. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine limited to 30 degrees or less. Moreover, the Veteran suffers from favorable ankylosis given that when the Veteran is laying down (is in the natural position) her plane of motion could be estimated at 0.

With respect to the use of a goniometer during the Veteran's June 2019 VA examination, the Veteran provided a statement in July 2019 asserting that the June 2019 VA examination was inadequate because the examiner failed to conduct range of motion tests or use a goniometer. As indicated in the regulations, the use of a goniometer in the measurement of limitation of motion is indispensable. 38 C.F.R. § 4.46. The Board notes the June 2019 VA examination report does not contain an affirmation that a goniometer was used. The Veteran is competent to report this difference in her VA examinations. In other words, having had two other VA examinations where a goniometer was used, the Veteran is competent to report that one was not used during her most recent examination. Accordingly, the Board finds that the range of motion testing results contained in the June 2019 VA examination report are not adequate for adjudication. In summary, The Board finds the Veteran's statements credible, as there is no evidence that contradicts or suggests otherwise. Because a goniometer was not used, the Board finds the June 2019 VA examination inadequate. However, given the presence of private examination reports after the May 2015 examination, the Board finds that there is sufficient medical evidence on which to adjudicate the claim and on which to base this partial grant of benefits.

The Board finds a rating in excess of 40 percent is not warranted because the evidence of record as detailed above does not demonstrate unfavorable ankylosis of the entire spine, to include the cervical spine. Additionally, the Veteran was never prescribed bed rest. and thus, cannot be evaluated under the DC 5243's incapacitating episode formula 

In summary, the Veteran's January 2014 private treatment record showing that her forward flexion was limited to less than 28 degrees or more. Additionally, the May 2015 VA examination indicated that based on the Veteran's statements her ROM during flares is close to zero. In summary, because the Veteran's ROM was measured at 28 degrees in January 2014, and the May 2015 VA examination used the Veteran's lay statements to indicate that her ROM during flares was close to zero, a 40 percent rating is warranted for forward flexion of the thoracolumbar spine limited to 30 degrees as well as for favorable ankylosis throughout the appeal. 38 C.F.R. § 4.71a, Code 5243.

 

David Gratz

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Mintz, Allison

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.