Citation Nr: 21066799 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 17-34 633 DATE: November 2, 2021 ORDER Entitlement to an evaluation of 40 percent, but no higher, for lumbar degenerative disc disease for the period from May 8, 2014 to May 7, 2015 is granted. Entitlement to an evaluation in excess of 40 percent for lumbar degenerative disc disease for the period beginning May 8, 2015 is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, for the period beginning May 8, 2014, the Veteran's lumbar spine disability resulted in 30 degrees or less for forward flexion of the thoracolumbar spine. 2. For the period prior to May 8, 2015, the preponderance of the evidence is against finding that the Veteran's lumbar degenerative disc disease had resulted in incapacitating episodes with a total duration of at least 6 weeks during the 12-month period. 3. The preponderance of the evidence is against finding that the Veteran has had unfavorable ankylosis of the entire thoracolumbar spine at any time during the entire period on appeal. 4. The preponderance of the evidence is against finding that the Veteran has had IVDS of the lumbar spine or his lumbar spine degenerative disc disease has been resulting in incapacitating episodes with a total duration of at least 6 weeks during a 12-month period at any time during the period beginning May 8, 2015. CONCLUSIONS OF LAW 1. For the period from May 8, 2014 to May 7, 2015, resolving reasonable doubt in the Veteran's favor, the criteria for an evaluation of 40 percent, but no higher, for lumbar degenerative disc disease have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.14, 4.40, 4.59, 4.71a, Diagnostic Code 5242 (2020). 2. For the period beginning May 7, 2015, the criteria for an evaluation in excess of 40 percent for lumbar degenerative disease have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.14, 4.40, 4.59, 4.71a, Diagnostic Code 5242 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1985 to March 1995. This case is before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Board denied the Veteran's entitlement to an evaluation in excess of 10 percent for lumbar degenerative disc disease for the period prior to August 18, 2015. In the same decision, the Board remanded the issue of the Veteran's entitlement to a higher rating for the period beginning August 18, 2015. The Veteran appealed the Board's denial for a rating higher than 10 percent for the period prior to August 18, 2015 to the United States Court of Appeals for Veterans Claims (Court). In December 2019, the Court granted a Joint Motion for Partial Remand to vacate the Board's March 2019 decision and remanded the matter for readjudication. In particular, the Court found that the August 2015 VA examination report is inadequate because it does not provide enough information detailing the Veteran's functional impairment during flare-ups as required by Sharp v. Shulkin, 29 Vet. App. 26 (2017). In November 2020, the Board remanded the increased rating claim for the period prior to August 18, 2015 for additional development. In August 2021, the RO issued a Supplemental Statement of the Case for both remanded issues. Now the matter is returned to the Board. In the interim, the RO increased the Veteran's disability rating for lumbar degenerative disc disease from 10 percent to 40 percent, effective May 8, 2015. See May 27, 2021 Rating Decision. The Board notes that the effective date for this increase was the filing date of the Veteran's increased rating claim for his service-connected lumbar disability. Thus, the Board will examine whether the Veteran is entitled to more than 10 percent evaluation for lumbar spine degenerative disc disease for the period from May 8, 2014 to May 7, 2015 and more than 40 percent evaluation for the period beginning May 8, 2015. Despite of the RO's grant of the rating increase to 40 percent for the period beginning May 8, 2015, the appeal continues as the highest possible rating for the disability has not been assigned. See AB v. Brown, 6 Vet. App. 35 (1993). A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). See generally 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. See 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2020). Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27 (2020). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. Also, in cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40 (2020). Functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. 38 C.F.R. § 4.59 (2020). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Excess fatigability and incoordination should be taken into account in addition to more movement than normal, less movement than normal, and weakened movement. 38 C.F.R. § 4.45 (2020). The intent of Rating Schedule is to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2020). VA has a duty to acknowledge and to consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). Where there is a question as to which of two ratings to apply, VA will assign the higher rating if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7 (2020). Otherwise, it will assign the lower rating. Id. Pursuant to Diagnostic Code 5242, degenerative disc disease of the lumbar spine is evaluated under either the General Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, whichever method results in the higher rating. 38 C.F.R. § 4.71a (2020). Under General Formula, in pertinent part, a 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a maximum 100 percent evaluation is warranted for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a, General Formula (2020). Under the Formula for Rating IVDS Based on Incapacitating Episodes, in pertinent part, a maximum of 60 percent evaluation is warranted for IVDS with incapacitating episodes having a total duration of 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2020). An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bedrest prescribed by a physician and treatment by a physician. Id., at Note 1. As the August 2015 VA examination report was found to be inadequate, a new examination to assess the severity of the Veteran's lumbar spine disability was conducted in April 2021. In the November 2020 Remand directives, the Board also asked the examiner to provide a retrospective assessment of the severity of the Veteran's lumbar disability for the period beginning May 8, 2014, which is one year prior to the date of the Veteran's increased rating claim. The April 2021 VA examiner provided two addendum opinions in regard to her retrospective assessment of the severity of the Veteran's lumbar spine disability. Based on the Veteran's reported symptoms during the August 2015 examination as well as the April 2021 examination, the examiner opined that, since May 8, 2014, the Veteran has had pain with flare-ups and repetitive movement over time that was severe enough to limit his function so that the Veteran was unable to perform any other tasks and had to rest. See May 2021 VES Addendum. The examiner noted that this is a typical progression of lumbar degenerative disc disease. Id. Notably, the examiner also provided an estimated range of motion for the Veteran's functional impairment for the period beginning May 8, 2014 as: forward flexion ending at 10 degrees; extension ending at 0 degrees; right and left lateral flexion ending at 0 degrees; and right and left lateral rotation ending at 0 degrees. See August 2021 VES Addendum. The Board finds the April 2021 VA examiner's opinion regarding retrospective assessment of the Veteran's lumbar spine disability to be competent and credible evidence and assigns a high probative weight as the examiner rendered the opinion after a review of the Veteran's records in conjunction with an in-person examination of the Veteran. The Board notes that the evidence of record does not contain other medical evidence that demonstrates the severity of the Veteran's lumbar spine disability for the period from May 2014 to May 2015. Based on above, the Board resolves reasonable doubt in the Veteran's favor and finds that the Veteran's lumbar spine disability resulted in 30 degrees or less for forward flexion of the thoracolumbar spine for the period beginning May 8, 2014. Consequently, resolving reasonable doubt in the Veteran's favor, the Veteran's entitlement to an evaluation of 40 percent, but no higher, for lumbar degenerative disc disease for the period from May 8, 2014 to May 7, 2015 is warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.14, 4.40, 4.59, 4.71a, Diagnostic Code 5242 (2020). As to evaluating the Veteran's lumbar spine disability based on incapacitating episodes, the Board finds that the preponderance of the evidence is against finding that the Veteran's lumbar degenerative disc disease had resulted in incapacitating episodes with a total duration of at least 6 weeks during the 12-month period for the period prior to May 8, 2015. As such, applying General Formula for the period from May 8, 2014 to May 7, 2015 results in a higher rating for the Veteran in this case. As to the period beginning May 8, 2015, a next higher rating of 50 percent is warranted under General Formula if the lumbar spine disability results in unfavorable ankylosis of entire thoracolumbar spine. However, the Board finds that the preponderance of the evidence is against finding that the Veteran has had unfavorable ankylosis of the entire thoracolumbar spine at any time during the entire period on appeal. See e.g., December 2019 and April 2021 Back Conditions Disability Benefits Questionnaire (DBQ). Moreover, the preponderance of the evidence is against finding that the Veteran has had IVDS of the lumbar spine or his lumbar spine degenerative disc disease has been resulting in incapacitating episodes with a total duration of at least 6 weeks during a 12-month period at any time during the period beginning May 8, 2015. See e.g., December 2019 Back Conditions DBQ (the examiner indicated that the Veteran does not have IVDS of the thoracolumbar spine), April 2021 Back Conditions DBQ (the examiner indicated the Veteran has degenerative disc disease other than IVDS and had no incapacitating episodes). As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply. Consequently, the Veteran's entitlement to an evaluation in excess of 40 percent for lumbar degenerative disease for the period beginning May 8, 2015 is not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.14, 4.40, 4.59, 4.71a, Diagnostic Code 5242 (2020). MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. E. Kim, 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.