Citation Nr: 21066697 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 15-03 235 DATE: November 1, 2021 ORDER A disability rating of 40 percent from August 19, 2004, to June 14, 2011, for a lumbar spine disability for the purposes of accrued benefits is granted. FINDING OF FACT From August 19, 2004, to June 14, 2011, the Veteran's lumbar spine demonstrated with worst-case scenario of 10 degrees forward flexion during flareups. CONCLUSION OF LAW From August 19, 2004, to June 14, 2011, the criteria for a 40 percent disability rating for a lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5210-5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 2004 to August 2004. The appellant is the Veteran's widow. This matter was last before the Board of Veterans' Appeals (Board) in June 2021. All actions ordered by the June 2021 remand have been accomplished. Increased Rating Disability ratings are determined by applying criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In disability rating cases, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims). Additionally, the evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. 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 or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104 (a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In assigning a higher disability rating, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Musculoskeletal System Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. 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 it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59. Provision 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. Under 38 C.F.R. § 4.45, functional loss due to weakened movement, excess fatigability, and incoordination must also be considered. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995) (holding that the criteria discussed in sections 4.40 and 4.45 are not subsumed by the DCs applicable to the affected joint). The provisions of 38 C.F.R. § 4.59 recognize that painful motion is an important factor of disability. Joints that are painful, unstable, misaligned, or due to healed injury are entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id.; see Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that § 4.59 applies to all forms of painful motion of joints, and not just to arthritis). Pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011) (holding that pain alone does not constitute function loss and is just one fact to be considered when evaluating functional impairment). Entitlement to a disability rating in excess of 20 percent from August 19, 2004, to June 14, 2011, for a lumbar spine disability for the purposes of accrued benefits The Veteran's service-connected lumbar spine disability had been evaluated as 20 percent disabling from August 19, 2004, to June 14, 2011, under the schedule for ratings for the musculoskeletal system. See 38 C.F.R. § 4.71a, DC 5010-5237. All spinal disabilities are evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Chronic lumbar strain and lumbar arthritis are to be evaluated either under the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (DC 5243), whichever method results in the higher rating. Under the General Rating Formula, a 10 percent rating is warranted when the forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, combined range of motion (ROM) of the thoracolumbar spine is 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 warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is 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 rating is assigned for forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. For VA compensation purposes, 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. The normal combined range of motion of the thoracolumbar spine is 240 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 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. Id. at Note (2). DC 5010 directs that traumatic arthritis substantiated by x-ray findings should be rated as degenerative arthritis under DC 5003. 38 C.F.R. § 4.71a. Under DC 5003, degenerative arthritis established by x-ray findings will be rated based on limitation of motion under the appropriate DCs for the specific joint or joints involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. In the absence of limitation of motion, x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups warrants a 10 percent rating, and x-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, warrants a 20 percent rating. Id. The 10 percent and 20 percent ratings based on x-ray findings will not be combined with ratings based on limitation of motion. Id. at Note 1. The Formula for Rating IVDS Based on Incapacitating Episodes provides a 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1). At a March 2005 VA examination, the Veteran reported repeated bending at the waist, prolonged standing or sitting, and carrying weight over 25 pounds aggravated his low back pain. He treated his pain with over-the-counter medication, and denied bowel, bladder, and erectile dysfunction. He also reported he had "no trouble" with activities of self-care, driving, or doing house or outside chores. The examiner noted the Veteran demonstrated normal gait, coordination, and posture, with no signs of abnormal weight bearing. On examination the examiner noted moderate paraspinal muscle spasm but no significant tenderness on palpation. The Veteran denied radiating pain on movement, and his straight leg raise test was negative bilaterally. Range of motion (ROM) testing revealed forward flexion to 90 degrees, extension to 30 degrees, bilateral lateral flexion to 30 degrees and bilateral rotation to 45 degrees. The examiner noted the Veteran's lumbar spine did not demonstrate IVDS, ankylosis, or additional limitations due to pain, fatigue, weakness, lack of endurance or incoordination. Imaging showed normal vertebrae contour and alignment, with disc spaces intact. The examiner diagnosed the Veteran with a lumbar strain. The functional impact of the Veteran's lumbar spine disability included excessive absenteeism due to low back pain. At a March 2010 VA examination, the Veteran reported functional impairment of "constant sharp pain" in his lower back which limited his ability to sit, walk, or stand for prolonged periods of time, or to lift weights over 20 pounds. The Veteran reported additional flare-up limitations of feeling "hobbled," and resulting in two incapacitations in the last year when he remained bedridden for approximately three days on each of the two occasions. ROM testing revealed 90 degrees of forward flexion, 10 degrees of extension, 20 degrees of bilateral lateral flexion, and 20 degrees of bilateral rotation. The examiner noted objective evidence of pain with motion at the extreme ends of ROM testing but without muscle spasms or weakness. The examiner noted no tenderness to light palpation. The examiner noted normal gait pattern, symmetrical weight-bearing, and no sciatic tension. Repetitive use testing did not result in additional limitations due to pain, weakness, fatigue, or incoordination. Imaging indicated mild degenerative changes of the lower lumbar spine, and the examiner noted no objective evidence of radiculopathy. In an August 2010 statement, the Veteran reported he could not bend his back without pain past 5 degrees while standing or sitting, and that he had back pain with prolonged sitting or standing. The Veteran also described constant pain on entering his car and sleeping at night. The Veteran endorsed flareups of at least three times a week. At an October 2010 VA examination, the Veteran reported "knifelike" pain; a feeling that his back was "inflamed" during certain activities; numbness and tingling radiating to his left buttock, though generally not below; and flare-ups of pain that occurred three times per week and lasted about 20 minutes, during which he needed to rest and avoid walking or bending. The Veteran denied incapacitating episodes in the last year. He also reported difficulty with bending, such as lower body dressing; and standing or walking for more than 20 minutes, including taking a shower. The examiner noted pain on palpation of the lumbosacral paraspinal muscles. ROM testing revealed forward flexion to 90 degrees, extension to 10 degrees, bilateral flexion to 25 degrees and bilateral rotation to 25 degrees. Repetitive use testing caused increased pain, but did not cause additional weakness, fatigability, or any additional functional limitations. The examiner noted the Veteran demonstrated a normal gait and symmetric weight-bearing. He also demonstrated normal muscle strength, sensory responses, and reflexes. Imaging indicated mild degenerative changes in the lower lumbar spine, and the examiner noted no evidence of radiculopathy. As noted by the parties before the Court, the March 2010 and October 2010 VA examinations did not indicate functional loss caused by pain, or during flare-ups, in terms of loss of range of motion pursuant to DeLuca v. Brown, 28 Vet. App. 202 (1995); see also Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017); Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). November 2010 treatment records indicate the Veteran reported complaints of low back pain for the past three days, secondary to painting. He endorsed sharp, achy pain that flared with certain movements and felt better with rest. The Veteran denied radicular symptoms. On examination the examiner noted no spinal tenderness to palpation; full active ROM both forward and laterally; normal gait; normal muscle strength; and normal sensation. The examiner reviewed March 2010 imaging and diagnosed the Veteran with acute to chronic lumbago exacerbated by painting. He advised the Veteran to undergo conservative treatment, to include prescription pain relief medication and a back support brace, until a follow up appointment could be made. December 2010 treatment records indicate the Veteran reported low back pain radiating into his left buttock and down his leg but that stopped mid-thigh. On examination the Veteran's spine demonstrated generalized tenderness; normal motor strength; slighted reduced reflexes; and a negative straight leg raise test. January 2011 VA treatment records indicate the Veteran demonstrated straight leg raise at 45 degrees bilaterally with complaint of low back pain but with no increase in radiating pain during the examination. The examiner noted the Veteran demonstrated low back pain with radiation into his right posterior-lateral thigh. The examiner also noted the Veteran's back pain may be a result of walking on a shortened leg. February 2011 treatment records indicate the Veteran endorsed radiating pain from his back through his left lower extremity. April 2011 VA treatment record indicates the Veteran's lumbar spine demonstrated pain with palpation and a positive straight leg raise test at 30 degrees bilaterally. His back also demonstrated normal strength and normal sensation to light touch. In early May 2011 the Veteran's treating physician wrote a statement for the Veteran's employer that the Veteran was suffering from chronic low back pain due to an acute exacerbation that limited his ability to sit, walk or sleep due to pain. The physician then stated the Veteran would be unable to work due mostly to being bedridden for the following seven to ten days. At an orthopedic surgery consultation two weeks later, the Veteran reported lower back pain with shooting pain down both lower extremities. ROM testing revealed forward flexion to 80 degrees with pain. The examiner noted the Veteran demonstrated an antalgic gait but without tenderness to palpation. The remainder of the examination evaluated the Veteran's left hip pain. In June 2011 the Veteran underwent a complete orthopedic evaluation. The examiner noted the Veteran's lumbar spine demonstrated a normal posture and contour with no evidence of scoliosis. The examiner also remarked he witnessed the Veteran demonstrate no difficulty rising from a seated position. On examination ROM testing revealed forward flexion to 10 degrees and neutral extension limited by pain, with a negative straight leg raise test bilaterally. The examiner also noted normal neurologic strength; normal lower extremity strength; normal sensory responses; and normal reflexes. However, the examiner noted the Veteran's gait was "exaggeratedly" abnormal and that the Veteran demonstrated alternating antalgic gait with forward flexion posturing. The examiner also noted tenderness to light touch over the lumbar paraspinal muscles but with no evidence of paraspinal muscle spasms. Separate June 2011 imaging revealed multilevel discogenic and spondylotic changes especially at L4-5, to include disc protrusion abutting the L5 nerve root; a disc bulge at L5-S1; and bilateral facet arthrosis resulting in moderate to severe left neural foraminal narrowing. In a March 2021 opinion, an examiner reviewed the Veteran's claims folder and offered a retrospective opinion regarding the Veteran's best- and worst-case scenarios for limitation of motion of his lumbar spine during initial ROM testing, repetitive use over time, and flareups. The examiner considered the Veteran's objective lumbar spine ROM measurements; the Veteran's reported subjective symptoms of pain during flareups; subjective reports of occasional incapacitation requiring self-prescribed bedrest; the Veteran's history of driving for more than one hour and resulting complaints; and the Veteran's own subjective claims of pain progression over the years in question. The estimated range of initial ROM results were forward flexion from 65 to 70 degrees (with pain); extension from 5 to 15 degrees (with pain); bilateral lateral flexion from 20 to 25 degrees; and bilateral lateral rotation from 30 to 35 degrees. The estimated range of ROM with repetitive use over time was forward flexion from 55 to 60 degrees (with pain); extension from zero to 10 degrees (with pain); bilateral lateral flexion from 20 to 25 degrees; and bilateral lateral rotation from 30 to 35 degrees. Estimated range of ROM during flareups was forward flexion from 55 degrees to 60 degrees (with pain); extension from zero to 10 degrees (with pain); bilateral lateral flexion from 20 to 25 degrees; and bilateral lateral rotation from 30 to 35 degrees. In an August 2021 addendum, a different examiner reviewed the Veteran's claims file, including the March 2021 opinion. The examiner explained that zero degrees extension during repetitive use testing and flareups did not equate to ankylosis nor imply that the Veteran was experiencing functional or favorable ankylosis. The estimate of the Veteran's extension during flareups as limited to zero was meant to describe the Veteran's subjective report of pain and being bed-ridden for back pain from his March 2010 VA medical examination. The examiner further explained that there was no "true ankylosis" on extension, and the worse-case scenario was better adjusted to 5 degrees to indicate a "severely decreased ROM on extension during flareups" and should not be understood to support a finding of functional or favorable ankylosis. These opinions did not consider the ROM testing results for forward flexion demonstrated at the June 2011 orthopedic evaluation. From August 19, 2004, to June 14, 2011, the Veteran's lumbar spine demonstrated with a worst-case scenario of 10 degrees forward flexion during flareups and warrants a 40 percent evaluation. A higher rating is not warranted because the Veteran's lumbar spine disability did not manifest with unfavorable ankylosis of the entire thoracolumbar spine. (CONTINUED ON NEXT PAGE) A 40 percent evaluation from August 19, 2004, to June 14, 2011, is assigned and the appeal is granted to this extent. 38 C.F.R. § 4.7. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In making these determinations, the Board has considered, along with the schedular criteria, the Veteran's functional loss due to pain. 38 C.F.R. §§ 4.40, 4.45 (2019); DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995). Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Anwar, Attorney-Advisor The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.