Citation Nr: 21067294 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 15-24 553 DATE: November 3, 2021 ORDER Entitlement to an evaluation in excess of 10 percent for lumbar spine degenerative arthritis, status post spinal fusion (a back disability) from April 16, 2013 is denied. FINDING OF FACT At no time from April 16, 2013, did the Veteran's back disability cause him to have 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. CONCLUSION OF LAW The criteria for entitlement to an evaluation in excess of 10 percent for a back disability from April 16, 2013 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code (DC) 5242. REMANDED The issue of entitlement to an evaluation in excess of 10 percent for right lower extremity radiculopathy is remanded. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from September 1983 to July 1987. This appeal comes to the Board of Veterans' Appeals (Board) from a rating decision dated June 2013 issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran timely appealed. In July 2020, the Board denied entitlement to a rating in excess of 10 percent for lumbar spine degenerative arthritis, status post spinal fusion and remanded entitlement to a separate compensable rating for neurological impairment secondary to the low back disability. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In March 2021, the Court granted a Joint Motion for Partial Remand (JMPR), vacating the part of the July 2020 Board decision that denied entitlement to a rating in excess of 10 percent for lumbar spine degenerative arthritis, status post spinal fusion. The Board remanded the case in June 2021. The issue has now been returned to the Board for adjudication. Increased Ratings A disability rating is determined by applying VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate DCs. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and coordination of rating with impairment of function. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Lay Statements The Veteran has made several lay statements relevant to both issues on appeal. In an April 2014 statement, the Veteran wrote, Prior to my spinal fusion surgery in September 2012, I was unable to stand for more than 20 minutes due to the numbness and loss of control in my right leg. Surgery corrected the problem...As one might expect, a spinal fusion does also cause decreased flexibility and discomfort. I once could nearly bend and touch my toes and now I reach my knees. Extended periods of time where I must sit causes discomfort, as does sitting upright. My right leg does not have the maneuverability of my left. In a June 2015 lay statement, the Veteran wrote, It was stated muscle spasm or guarding is not severe enough to cause abnormal gait or spinal contour. I have a few concerns with this assessment, as follows: Evidence that I walked two miles a day was true. I was told to walk as much as I could and that I needed to do this in order to regain strength...I frequently walked great distances and for hours at a time prior to the development of this issue. Using a cane is not something I welcomed and I pushed myself to get rid of it. I have been restraining my activities since because issues that are not present daily will start to develop. My doctor at the local VA clinic suggested hip pain I was experiencing and frequently tripping with my right foot is a result of this issue and the surgery that followed. I believe the pain could be caused by spasms or change in gait, and the tripping would be a change in gait. There is a difference in reaction and feeling in my lower right leg that I attribute the tripping to as well. In an October 2021 statement, the Veteran wrote, The decision rendered by the...Regional Office focuses on numbers/angles of ranges of motion and pain. My concerns that I have raised focus more on the inability to feel, which can hide the pain, and loss of everyday mobility, such as difficulty pulling a sock on my right foot and walking across the uneven terrain without tripping. While I do occasionally take pain relief in order to sleep, pain has never been the sole focus of my concern. The more intimidating lack of sensation always has been, primarily on the right and extending to my heel. 1. Entitlement to an evaluation in excess of 10 percent for a back disability from April 16, 2013 The Veteran's lumbar spine degenerative arthritis, status post spinal fusion (hereinafter, "back disability") is currently rated as 10 percent disabling under DC 5242. The Veteran seeks a higher rating. The period on appeal begins on April 16, 2013, the date of the Veteran's claim for an increased rating. The Board notes that, during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 76453 (Nov. 30, 2020). The Board notes, however, that DC 5242 was not amended. Thus, the amended criteria do not apply in this case. Under the General Rating Formula for Diseases and Injuries of the Spine, 38 C.F.R. § 4.71A provides the following ratings for degenerative arthritis of the spine with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease: A 10 percent rating contemplates forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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 contemplates forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion (ROM) of the thoracolumbar spine not greater than 120 degrees; or, the combined ROM of the cervical spine not greater than 170 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 contemplates forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating contemplates unfavorable ankylosis of the entire thoracolumbar spine. Lastly, a 100 percent rating contemplates unfavorable ankylosis of the entire spine. When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable DC, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (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. The provisions of 38 C.F.R. § 4.40 state that 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. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of "the normal working movements of the body," such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). The evidence of record is supportive of a 10 percent rating from April 16, 2013, but no higher, for the Veteran's back disability. 38 C.F.R. § 4.7. This 10 percent rating is effective for orthopedic manifestations of his back disability under DC 5242 under the General Rating Formula for Diseases and Injuries of the Spine. However, the Board concludes that the Veteran is not entitled to a disability rating in excess of 10 percent for his back disability from April 16, 2013. 38 C.F.R. § 4.7. In making this determination, the Board has considered the competent and credible medical and lay evidence of record. In a June 2013 VA examination, the Veteran noted that he used to have flare-ups, but did not anymore. Forward flexion ended at 85 degrees with no objective evidence of painful motion. Extension ended at 30 degrees with no objective evidence of painful motion. Right and left lateral flexion ended at 30 degrees with no objective evidence of painful motion. Right and left rotation ended at 30 degrees with no objective evidence of painful motion. He was able to perform repetitive-use testing with three repetitions. Post-test forward flexion ended at 85 degrees and post-test extension ended at 30 degrees. Post-test right and left lateral flexion ended at 30 degrees. Post-test right and left lateral rotation ended at 30 degrees. He did not have additional limitation in range of motion of the thoracolumbar spine following repetitive-use testing. He also did not have any functional loss and/or impairment of the thoracolumbar spine. There was no additional limitation of range of motion. He had localized tenderness or pain to palpation for joints and/or soft tissue of the thoracolumbar spine described as only minor soreness along the vertical spinal surgical line. He did not have guarding or muscle spasm of the thoracolumbar spine. Muscle strength was 5/5. He did not have muscle atrophy or radiculopathy. He also did not have IVDS. The examiner noted that the Veteran's IVDS was resolved with his recent surgery in September 2012. A January 2017 VA treatment record notes the Veteran's reports of ambulating much better and no longer using his cane. He also reported that his leg pain and numbness had resolved. In a July 2018 medical treatment note, the Veteran complained of back pain. He took Tylenol and Ibuprofen for treatment. The pain was rated as a six out of 10. On examination, he had mild tenderness on the right side of the mid back. In a May 2019 medical treatment record, the Veteran had left sided mid-back pain that was described as a dull aching. He had full range of motion to the back and all of his extremities. He rated the pain a seven to eight out of 10 and said it was continual only subsiding some when he was completely still. He stated it was worse at night if he tried to sleep on his back. In a November 2019 VA examination, the Veteran denied having recent treatment related to his back pain and spinal fusion. He stated that he was seen at the VAMC in July 2019 for an evaluation of muscle spasms in the thoracolumbar spine. He was given muscle relaxants. He continued to have pain in this area. He reported flare-ups of the thoracolumbar spine. He reported that he developed pain in his low back with running. He decided not to run any longer because he did not want recurring pain and re-injury of his low back. The frequency of the flare-ups was typically with running. The severity of the pain was an eight out of 10 or worse. The pain would last for several days. He typically treated it with Ibuprofen with relief after taking several. He reported having functional loss or impairment reported as difficulty with his right foot positioning and tripping at times. He was able to perform most activities as long as he was careful. He had difficulty dressing and putting pants on because he could not feel positioning of his foot. Forward flexion ended at 85 degrees, and extension ended at 30 degrees. Right lateral flexion and rotation were to 25 degrees. Left lateral flexion and rotation were to 30 degrees. The abnormal range of motion itself contributed to a functional loss described as the Veteran stated he had some limited lateral movement with flexion and rotation to right. No pain was noted on examination. There was no evidence of pain with weight bearing or objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the thoracolumbar spine. He was able to perform repetitive-use testing with at least three repetitions with no additional loss of function. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. The examiner noted there remained no basis to offer additional losses of function or motion when it comes to repeated use over time. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare-ups. The examiner noted there remained no basis to offer additional losses of function or motion when it comes to repeated use over time. He had muscle spasms of the thoracolumbar spine described as not resulting in abnormal gait or abnormal spinal contour. He did not have guarding. Muscle strength was 5/5. He did not have muscle atrophy or radiculopathy. He did not have ankylosis or IVDS. A November 2019 scan of the thoracolumbar spine showed status post bilateral posterior surgical stabilization, L5-S1, status post bilateral laminectomy of L5, and an otherwise negative exam. In its March 2021 JMPR, the Court determined that the November 2019 VA examination was inadequate. Thereafter, the Board remanded the claim for a new VA examination. In a July 2021 VA examination, the Veteran reported that in the last year when standing, walking or running, his right lower extremity has an ascending "numbness" after 20 minutes. He reported that this was relieved by squatting down and flexing his lumbar spine. He denied this symptom when lying down or sitting. The symptom is triggered by 20 minutes of jogging and the paresthesia is relieved by sitting. He had numbness primarily in the right foot. He could trip easily if unaware of positioning of his feet. He had intermittent back pain in the low back on the right side. Sitting for extended periods of time aggravated the back. He used a sit/stand desk at work. He did not report flare-ups. He reported functional loss or impairment described as unable to flex forward, pain was aggravated by sitting/standing for an extended period of time. Range of motion contributed to a functional loss. He was unable to fully flex forward or extend. Forward flexion ended at 70 degrees. Extension and right lateral flexion ended at 20 degrees. Left lateral flexion, right lateral rotation, and left lateral rotation all ended at 30 degrees. He had pain on forward flexion and extension. Passive range of motion testing was performed. Forward flexion ended at 75 degrees. Extension and right lateral flexion ended at 25 degrees. Left lateral flexion, right lateral rotation, and left lateral rotation were all the same as active range of motion. There was limitation of motion attributable to pain in forward flexion and extension. Forward flexion was to 70 degrees and extension was to 20 degrees. There was evidence of pain with active motion that did not result in or cause functional loss. There was no evidence of crepitus or localized tenderness or pain on palpation of the joint or associated soft tissue. He was able to perform repetitive use testing with at least three repetitions with additional loss of function or range of motion after three repetitions. Forward flexion ended at 70 degrees. Extension ended at 20 degrees. Right and left lateral flexion ended at 25 degrees. Right and left lateral rotation ended at 30 degrees. Pain caused the functional loss. He did not have localized tenderness, guarding or muscle spasm of the thoracolumbar spine. Muscle strength is 5/5. He did not have muscle atrophy. He did not have ankylosis or IVDS. In this case, the Veteran has not been shown to have 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. 38 C.F.R. § 4.71a. That is, even with consideration of pain, functional loss, and repetition times three, limitation of forward flexion has exceeded 60 degrees. At worst, forward flexion was limited to 70 degrees. These range of motion findings are consistent with a 10 percent rating, and do not support a higher rating for his back disability. Additionally, although the Veteran did have muscle spasms of the thoracolumbar spine noted in his November 2019 VA examination, they did not result in an abnormal gait or abnormal spinal contour. With regard to functional loss, as discussed above, the Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca and Mitchell. In light of the above evidence, repetitive motion and pain were considered, but the thoracolumbar spine was not additionally limited to the point of demonstrating ankylosis or flexion greater than 30 degrees but not greater than 60 degrees. The Board has considered the functional impairments the Veteran experiences described above. The Veteran is competent to report the symptoms of pain and limited function that he experiences, and the Board finds no reason to doubt his credibility when considering functional loss. However, the effects reported are contemplated in the 10 percent rating assigned. The Veteran does not have IVDS, but even considering DC 5243, in order to get a rating in excess of 10 percent, the Veteran must have incapacitating episodes (requiring bed rest prescribed by a physician) with a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. Here, the Veteran has not had IVDS from April 16, 2013 and has had no incapacitating episodes. Thus, a rating under DC 5243 is not warranted. Therefore, an evaluation in excess of 10 percent from April 16, 2013 for the Veteran's service-connected lumbar spine degenerative arthritis, status post spinal fusion is not warranted, as the Veteran's symptoms are consistent with the assigned 10 percent rating. Although the Veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. REASONS FOR REMAND 2. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy The Veteran's right leg neurologic abnormality associated with his service-connected back disability has been part of his service-connected disability from the beginning. He was originally granted service connection in 1999 for "low back pain, radiating to right thigh." His increased rating claim included the right leg neurological effects and he appealed it along with the back in 2014. The 2015 statement of the case did not list radiculopathy as an issue but it did address it in the text of the analysis so there is an implicit denial, and the Veteran's Form 9 attachment described the "difference in reaction and feeling in my lower right leg." The July 2018 Board remand included "low back pain radiating to the right thigh" as part of the remanded back issue. The subsequent July 2020 Board decision remanded the issue of a separate compensable rating for neurological impairment secondary to the low back disability. While on remand, a November 2020 rating decision granted a separate 10 percent rating for right lower extremity radiculopathy, effective April 8, 2013, as part and parcel of the underlying higher rating claim for the back. However, the Veteran did not withdraw the appeal for a higher rating for the right leg and he did not receive the maximum schedular rating, so this issue is still before the Board. A.B. v. Brown, 6 Vet. App. 35 (1993). His recent submissions indicate he is still seeking a higher rating for this and it is his primary complaint. The Board finds that this issue is still on appeal and under the Board's jurisdiction. A VA examination was provided in August 2021 that addressed the Veteran's radiculopathy as part of the back disability. However, a supplemental statement of the case (SSOC) was not provided considering this evidence and the Veteran did not waive RO consideration of this evidence. Therefore, a remand is required to provide an SSOC for this issue. 38 CFR 19.31. The matters are REMANDED for the following action: 1. Issue an SSOC to the Veteran and his representative considering all relevant lay and medical evidence submitted after the November 2020 rating decision and readjudicating the issue of a rating in excess of 10 percent for right lower extremity radiculopathy from April 8, 2013. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Minock 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.