Citation Nr: 21066965 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 18-29 093 DATE: November 3, 2021 ORDER A rating of 20 percent for a low back disability for the period of the appeal prior to June 25, 2021 is granted. Entitlement to a rating in excess of 40 percent for a low back disability from June 25, 2021 is denied. FINDINGS OF FACT 1. Prior to June 25, 2021 the Veteran's low back disability during flare-ups was best approximated by forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; intervertebral disc syndrome (IVDS) resulting in prescribed bed rest ordered by a physician was not shown. 2. From June 25, 2021 the Veteran's low back disability is not shown to have been manifested by unfavorable ankylosis of the entire thoracolumbar spine; neurological manifestations other than lower extremity radiculopathy are not shown (or alleged); incapacitating episodes of IVDS of at least six weeks during the past twelve months are not shown. CONCLUSIONS OF LAW 1. Prior to June 25, 2021 the criteria for a rating of 20 percent for a low back disability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (Code) Codes 5237, 5242, 5243 (2020). 2. From June 25, 2021 the criteria for a rating in excess of 40 percent for a low back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Codes 5237, 5242, 5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from October 1973 to December 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision, which reduced the Veteran's low back disability from 20 percent to 10 percent. In July 2019, the Board denied to entitlement to a rating in excess of 10 percent. In May 2020, the United States Court of Appeals for Veterans Claims granted a Joint Motion for Partial Remand. In November 2020 the matter was remanded for additional development. 1. 2. A rating of 20 percent for lumbar strain prior to June 25, 2021 and entitlement to a rating in excess of 40 percent from that date. Revisions were made to certain regulations governing ratings for musculoskeletal disabilities, effective February 7, 2021. As the Veteran's appeal was pending at the time of this revision, from that date, he is entitled to a rating under the old or the new criteria, whichever are more favorable. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's service-connected low back disability includes lumbosacral strain, IVDS, and degenerative disc disease. [Service connection has also been established for neurological manifestations of radiculopathy of the lower extremities which are separately rated and are being addressed in separate appeals under the modernized system; those ratings are not before the Board in this decision.] Lumbosacral strain is rated under Code 5237 and arthritis of the thoracolumbar spine is rated under Code 5242 (each rated under the General Rating Formula for rating spine disability (General Formula)), which provides that a 10 percent rating is warranted with 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 gain 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 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 rating is warranted when forward flexion of the thoracolumbar spine is limited to 30 degrees or less; or, with 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 the entire spine. A note following provides that neurological manifestations are to be separately rated under an appropriated diagnostic code. 38 C.F.R. § 4.71a. IVDS may be rated either under the General Formula or under the formula for rating IVDS based on incapacitating episodes, whichever results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Under the formula for rating IVDS based on incapacitating episodes, incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, are rated 40 percent; and incapacitating episodes having a total duration of at least 6 weeks during the past 12 months are rated 60 percent. 38 C.F.R. § 4.71a, Code 5243. [An incapacitating episode is a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. Note 1, following the Formula for Rating IVDS Based on Incapacitating Episodes.] Where entitlement to compensation has already been established and an increase in the disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In a claim for an increased rating, "staged" ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). The Veteran's lumbosacral strain was service-connected and assigned an initial rating effective in October 2004. The RO received the Veteran's claim for an increased rating in August 2014. On February 2015 back conditions disability benefits questionnaire (DBQ), the diagnoses were degenerative arthritis of the spine, and degenerative disc disease. The Veteran reported flare-ups and stated he could not walk as well during a flare-up. The Veteran reported flare-ups occurring with certain activities or twice monthly. He reported the flare-ups as severe and lasting for days. Range of motion on examination was normal. Pain on examination did not result in functional loss. Observed repetitive use did not result in additional functional loss. Localized tenderness did not result in abnormal gait or spinal contour. Ankylosis of the spine was not shown. IVDS was not shown. It was noted that the Veteran occasionally used a cane because of a left knee disability. In April 2015 correspondence, the Veteran stated his low back had not improved. At the May 2015 RO hearing the Veteran testified that he was prescribed morphine for pain. He stated that due to his back pain he is unable to lift things, move the way he used to move, or sit for a long time in one spot. In April 2016 correspondence, the Veteran's representative stated the Veteran's low back disability had worsened. An April 2016 chiropractor consultation record notes the Veteran was seen for treatment for low back pain. The Veteran reported he was seen at an emergency room (ER) for back pain. Active range of motion was flexion to 80 degrees, and extension, right and left rotation, and right and left lateral flexion each to 20 degrees. Pain was noted on flexion, extension, and right and left rotation. An August 2017 chiropractic clinic record notes the Veteran was seen for chronic low back pain and was last seen in November 2016. It was noted that he had responded well to acupuncture treatment in the past, but pain had become worse recently. The Veteran described his back pain as constant. Lumbar active range of motion was noted as flexion to 80 degrees, and extension, right and left rotation, and right and left lateral flexion each to 20 degrees. Pain was noted on flexion, extension, and right and left rotation. On March 2018 back conditions DBQ, the diagnoses were lumbosacral strain, right lumbar muscle strain, and lumbar radiculopathy. The Veteran reported flare-ups which occur once or twice a year which result in going to the Emergency Room due to back pain. He reported last being seen at a VA ER in April 2016. Range of motion was abnormal with flexion to 70 degrees, extension to 20 degrees, right lateral flexion to 30 degrees, left lateral flexion to 20 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 25 degrees. Tenderness on palpation was shown. Observed repetitive use did not result in additional functional loss. Guarding and muscle spasm was not shown. Ankylosis was not shown. IVDS was shown but did not result in bed rest prescribed by a physician within the past twelve months. It was noted that the Veteran used a cane for stability due to back, hip, knee, and ankle pain. On June 25, 2021 back conditions examination, the diagnoses were lumbosacral strain, IVDS, degenerative disc disease, and lumbar radiculopathy of the lower extremities. The Veteran described current symptoms of pain, popping, muscle spasms, stiffness, tightness, and aching. He reported being bedridden several times a year because of severe back pain. The Veteran described flare-ups occurring daily for several hours with severe aching pain brought on by walking and standing. Range of motion was abnormal with forward flexion to 45 degrees, and extension, right and left lateral flexion, and right and left lateral rotation each to 15 degrees. Observed repetitive use did not result in additional functional loss. Estimated range of motion after repeated use over time was flexion to 30 degrees, and extension, right and left lateral flexion, and right and left lateral rotation each to 5 degrees. The Veteran was not examined during a flare-up. Range of motion during flare-ups was estimated as flexion to 30 degrees, and extension, right and left lateral flexion, and right and left lateral rotation each to 5 degrees. Ankylosis was not shown. IVDS with episodes of bed rest having a total duration of at least one week but less than two weeks during the past twelve months was noted. Initially, the Board also notes that the Veteran is separately rated for right and left lower extremity radiculopathy (secondary to the service-connected low back disability). The Veteran has not made allegations of worsening neurological manifestations of the left lower extremity. He has expressed disagreement with an April 2021 rating decision that continued a 20 percent rating for the right lower extremity. This matter is subject to an appeal under the modernized adjudication process and is not addressed in this decision. Accordingly, an increase in the Veteran's separately rated left lower extremity radiculopathy is not for consideration. Prior to June 25, 2021 Prior to June 25, 2021 the Veteran is rated 10 percent under the General Rating Formula for Diseases and Injuries of the Spine. The Board notes that on examination and treatment records, the record does not demonstrate forward flexion that was limited to 60 degrees or less, or muscle spasm or guarding resulting in abnormal gait or abnormal contour. Examinations demonstrate forward flexion ranging from normal (90 degrees) to 70 degrees. However, such evaluations failed to consider the Veteran's forward flexion at the time of his flare-ups. Notably, the Veteran has reported severe flare-ups occurring monthly, which impacted his ability to walk effectively. While testing (or approximation of range of motion during flare-ups was not provided), the Board finds the Veteran's reports of functional impairment of flare-ups reasonably suggest that during flare-ups the Veteran's forward flexion is limited to 60 degrees or less. Accordingly, resolving any remaining reasonable doubt in the Veteran's favor is required (see 38 C.F.R. § 4.3), the Board finds that prior to June 25, 2021 the Veteran's low back disability most closely approximates the requirements for a 20 percent rating under 5242 (The General Rating Formula for Diseases and Injuries of the Spine), and that such rating is warranted for the period of the appeal prior to June 25, 2021. From June 25, 2021 On June 25, 2021 examination, it was noted that the Veteran experienced episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician of at least one week but less than two weeks during the past twelve months. Such finding corresponds with a 10 percent rating under the alternative rating of IVDS, and therefore assignment under such code would result in a lower rating. Accordingly, the alternate rating based on IVDS is not warranted under either the old or new version of Code 5243. From June 25, 2021 the Veteran's low back is rated 40 percent, based on forward flexion of the thoracolumbar spine of 30 degrees. The next higher (50 percent) rating under the General Formula requires unfavorable ankylosis of the entire thoracolumbar spine, which is not shown. Accordingly, a rating in excess of 40 percent from June 25, 2021 is not warranted. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Staskowski, 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.