Citation Nr: 21068021 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 15-05 898 DATE: November 8, 2021 ORDER From March 23, 2015 to May 20, 2019 and from November 12, 2019 to May 24, 2021, a 20 percent rating for the Veteran's lumbar spine degenerative arthritis with lumbosacral strain (lumbar spine disability) is granted. Entitlement to a rating in excess of 20 percent for the lumbar spine disability at any point during the appeal period is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) prior to March 8, 2019 is remanded. FINDINGS OF FACT 1. Prior to May 20, 2019 and from November 12, 2019 to May 24, 2021, the Veteran's lumbar spine disability was manifested by forward flexion limited to at least 60 degrees during a flare-up, and by muscle spasms resulting in an abnormal gait. 2. For the entire appeal period, the Veteran's lumbar spine disability has not been manifested by forward flexion to 30 degrees or less, or favorable or unfavorable ankylosis of the lumbar spine. CONCLUSIONS OF LAW 1. Prior to May 21, 2019, the criteria for a 20 percent rating for the lumbar spine disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 2. From November 12, 2019 to May 24, 2021, the criteria for a 20 percent rating for the lumbar spine disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 3. For the entire appeal period, the criteria for a rating in excess of 20 percent for the lumbar spine disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1966 to June 1967 and from July 1967 to August 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia. In August 2018, the Veteran testified before the undersigned at a videoconference hearing. A transcript of the hearing is associated with the claims file. The instant matters were remanded by the Board in April 2019 and in November 2020. As noted in the November 2020 Remand, the period where a TDIU has not been awarded, i.e., prior to March 8, 2019, remains before the Board. Increased Ratings The Veteran seeks higher ratings for his service-connected lumbar spine disability. By way of history, a December 2013 rating decision granted service connection for lumbar degenerative disc disease and assigned an initial 10 percent rating effective January 8, 2013. The Veteran filed an increased rating claim in March 2015, and the May 2015 rating decision on appeal continued the 10 percent rating. Subsequently, a September 2020 rating decision assigned a 20 percent disability rating effective from May 21, 2019 to November 12, 2019, with a 10 percent rating assigned effective November 12, 2019, based upon a VA examination on that date demonstrating improvement in the Veteran's condition. An August 2021 rating decision increased the rating to 20 percent disabling, effective May 25, 2021. Relevant Law and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, 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. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Thus, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the 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. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. The Veteran's lumbar spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for 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 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 for 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 for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Relevant Facts In connection with his March 2015 increased rating claim, the Veteran underwent a VA lumbar spine examination in April 2015. He reported flare-ups that manifested in reduced function, an inability to complete daily chores that include reaching or bending at the waist, and an inability to look left while driving. Initial range of motion testing showed forward flexion to 65 degrees, with normal range of motion on extension, lateral flexion, and lateral rotation. The Veteran was able to perform repetitive-use testing with three repetitions without any additional loss of range of motion. He similarly did not have any additional limitation in range of motion following repetitive-use testing; however, he had functional loss and/or functional impairment with contributing factors of less movement than normal and pain on movement. The examiner was unable to provide additional loss of function in terms of range of motion without resorting to speculation because the Veteran stated that additional limitation varied during flare-ups or with repeated use over time. The Veteran had localized tenderness, but there was no evidence of guarding or muscle spasms of the back. There was no evidence of radiculopathy or other neurologic abnormalities. Intervertebral disc syndrome (IVDS) was not identified. In his June 2015 Notice of Disagreement, the Veteran contended that he was entitled to a higher rating for his lumbar spine disability because he experienced constant muscle spasms. At his August 2018 Board hearing, the Veteran testified that his lumbar spine had worsened in severity. Specifically, he said that he experienced pain and shooting pain from his back into his legs. The Veteran submitted a Disability Benefits Questionnaire (DBQ) completed by Dr. J.E. in May 2019. The Veteran noted frequent flare-ups manifesting in severe pain and debilitating muscle spasms. Initial range of motion testing showed flexion to 90 degrees, extension to 10 degrees, right and left lateral flexion each to 10 degrees, and right and left lateral rotation each to 30 degrees. There was guarding or muscle spasm of the back, with an abnormal gait. Contributing factors of disability included excess fatigability, pain on movement, disturbance of locomotion, interference with sitting, and interference with standing. Radiculopathy was not shown. No other neurological abnormalities were noted. It was noted that the Veteran had IVDS with incapacitating episodes with a total duration of at least 4 weeks but less than 6 weeks. A July 2019 private treatment note shows that the Veteran reported central lower back spasms intermittently with changes in positions. The Veteran underwent a VA examination in November 2019. He reported flare-ups that occurred about 2 to 3 times a year, which were severe, and lasted for 10 to 12 days at a time. Initial range of motion testing showed forward flexion to 80 degrees, extension to 20 degrees, and lateral flexion and lateral rotation to 25 degrees on each side. The Veteran was not being examined immediately after repetitive use over time, and the examiner noted that pain, weakness, fatigability, nor incoordination would significantly limit functional ability with repeated use over time. The examination was conducted during a flare-up, and range of motion showed forward flexion to 70 degrees, extension to 15 degrees, and right and left lateral flexion and right and left lateral rotation each to 20 degrees. The examiner stated that the Veteran did not have guarding or muscle spasm. There were no additional contributing factors of disability. There was no evidence of radiculopathy or other neurological abnormalities. IVDS was not noted. Finally, the Veteran underwent a VA examination in May 2021. He denied experiencing flare-ups of his lumbar spine. Initial range of motion testing showed forward flexion to 40 degrees, extension to 5 degrees, right and left lateral flexion each to 10 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 10 degrees. Passive range of motion testing was not completed because of severe pain. The Veteran was able to perform repetitive use testing with at least three repetitions without additional loss of function or range of motion. The Veteran was not being examined immediately after repeated use over time, however procured evidence including statements from the Veteran did not suggest that pain, fatigability, weakness, lack of endurance, or incoordination would significantly limit functional ability with repeated use over time. There was no localized tenderness, guarding, or muscle spasm. Additional factors contributing to the disability included less movement than normal; the examiner commented that the Veteran had reduced range of motion due to pain. There was no evidence of radiculopathy, ankylosis, or IVDS. Analysis As noted above, the Veteran is currently in receipt of a 10 percent rating from March 23, 2015 to May 20, 2019, a 20 percent rating from May 21, 2019 to November 11, 2019, a 10 percent rating from November 12, 2019 to May 24, 2021, and a 20 percent rating from May 25, 2021. Initially, the Board concludes that the Veteran's lumbar spine disability warrants a 20 percent disability rating for the periods during which a 10 percent rating is currently in effect, i.e., from March 23, 2015 to May 20, 2019 and from November 12, 2019 to May 24, 2021. In this regard, at the Veteran's April 2015 VA lumbar spine examination, it was shown that the Veteran had forward flexion to 65 degrees. However, no estimates were provided for additional loss of range of motion after a flare-up, and the Veteran specifically explained that he experienced flare-ups resulting in reduced function and an inability to turn to one side. Given the Veteran's statements, it is fair to assume that the Veteran would lose an additional five degrees of range of motion during a flare-up, amounting to 60 degrees of forward flexion, which corresponds to an increased, 20 percent rating. Moreover, while there has been an open medical question as to whether the Veteran has experienced muscle spasms resulting in an abnormal gait, upon review of the pertinent medical evidence, the Board finds that there is evidence of such abnormal gait. Indeed, in the May 2019 DBQ, and in VA treatment records dated in July 2019 and March 2020, the Veteran was noted to have an abnormal gait. Taken together with his statements, and after resolving doubt in the Veteran's favor, the Board finds that his lumbar spine disability has manifested in muscle spasms that occasionally result in abnormal gait throughout the appeal period. In light of the foregoing, the Board concludes that a 20 percent rating is warranted for all times during the appeal period where a 20 percent rating is not already in effect, i.e., from March 23, 2015 to May 20, 2019 and from November 12, 2019 to May 24, 2021. However, the Board does not find that a rating in excess of 20 percent is warranted at any point during the appeal period. In this regard, to attain a rating of 40 percent, the evidence would need to show forward flexion of the lumbar spine to 30 degrees or less or favorable ankylosis of the lumbar spine. Neither is shown. Indeed, the worst flexion has been shown to be 40 degrees, which is commensurate with a 20 percent rating. At his most recent examination, the Veteran denied experiencing flare-ups and there was no evidence that range of motion would be additionally limited after repeated use over time. The evidence does not show, and the Veteran has never contended, that he experiences favorable ankylosis of the lumbar spine, nor is there evidence that he experiences the functional equivalent of ankylosis. See Chavis v. McDonough, 34 Vet. App. 1 (2021). The Board has considered whether separate ratings may be awarded for neurological impairment, specifically radiculopathy, given the Veteran's statements at his August 2018 Board hearing that he experienced a shooting sensation down his legs. However, the Board has taken that statement along with the findings of three VA examinations and a private DBQ, none of which identified the presence of radicular symptoms. Moreover, the Veteran did not endorse any radicular symptoms at those examinations. While the Veteran is competent to report symptomatology that he has experienced, in this case, shooting pain, he has not shown that he has the medical experience or training to diagnose the condition or relate the condition to his lumbar spine disability, which is a medically complex determination that cannot be based on lay observation alone. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Accordingly, given the determinations made by multiple medical professionals during the appeal period, the Board does not find that separate ratings for radiculopathies are warranted. The Board adds that no other neurological abnormalities have ever been noted. Finally, the Board recognizes that the July 2019 DBQ identified the presence of IVDS and indicated that the Veteran had experienced incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. The Board has compared this finding to the findings by VA examiners in March 2015, November 2019, and May 2021 that the Veteran did not have IVDS. It appears that the July 2019 finding of IVDS may have been based on unsubstantiated reports by the Veteran, as neither his VA nor private treatment records confirm prescribed bedrest, and he has not submitted (or identified) any treatment records showing that he was prescribed bedrest. Therefore, the Board finds that a higher rating is not warranted pursuant to Diagnostic Code 5243. For the foregoing reasons, and after resolving all doubt in the Veteran's favor, an increased, 20 percent rating is warranted for the time period prior to May 21, 2019 and from November 12, 2019 to May 25, 2021. A rating in excess of 20 percent is not warranted at any time during the appeal period. The Board adds that it has considered whether this increase to 20 percent may be awarded during the one-year period prior to the Veteran's March 23, 2015 date of claim; however, it is not factually ascertainable that an increase in severity warranting an increase took place during that time period. REASONS FOR REMAND As noted above, the period of time where a TDIU has not been awardedprior to March 8, 2019is for consideration. It is not evident from the record, however, whether the Veteran's service-connected disabilities precluded gainful employment prior to that date. In this regard, while the AOJ has made a determination that the Veteran was most recently engaged in marginal employment, the only income statement of record is from 2019. Thus, it is not clear whether the Veteran has been engaged in marginal employment for the entire period in which he claims he is entitled to a TDIU. On remand, the AOJ should request that the Veteran provide, for the entire appeal period, evidence pertaining to the Veteran's employment and annual income each year he claims to have been precluded from gainful employment. Information such as tax returns during these years may be beneficial in supporting his claim. To the extent that the Veteran contends that his employment was marginal, he should provide an explanation as to the specific conditions of his employment that made it so. The matter is REMANDED for the following action: 1. Request that the Veteran submit a statement or report providing detailed information regarding employment and income history for each year prior to March 8, 2019, in which he claims to have been precluded from maintaining gainful employment due to service-connected disabilities. Invite the Veteran to submit additional supporting documentation including tax returns or statements from his current or former employers. 2. Then, readjudicate entitlement to a TDIU prior to March 8, 2019, to include consideration of whether extraschedular referral is warranted. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Polly Johnson, 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.