Citation Nr: 21068174
Decision Date: 11/09/21	Archive Date: 11/09/21

DOCKET NO. 15-45 675
DATE: November 9, 2021

ORDER

An initial rating in excess of 20 percent from March 27, 2013, for lumbar spine disability is denied.

FINDING OF FACT

Beginning March 27, 2013, the Veteran's service-connected lumbar spine disability has been manifested by symptoms that include pain but do not exhibit or more nearly approximate forward flexion of the thoracolumbar spine to 30 degrees or less, or ankylosis of the entire thoracolumbar spine, or incapacitating episodes of intervertebral disc syndrome (IVDS) of at least 4 weeks but less than 6 weeks during the past 12 months, even when considering additional functional loss.

CONCLUSION OF LAW

The criteria for a rating in excess of 20 percent beginning March 27, 2013, for service-connected lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.71a, Diagnostic Code 5242.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Navy from February 1978 to January 1982, from April 1982 to June 1995, and from July 1995 to December 2000.

In a March 2019 decision, the Board of Veterans' Appeals (Board), in pertinent part, denied an increased initial rating in excess of 20 percent for a lumbar spine disability and also granted an earlier effective date from March 27, 2013 to January 1, 2001, for the award of service connection for the lumbar spine disability. Thereafter, the Veteran timely appealed the Board's denial of an initial rating in excess of 20 percent for a lumbar spine disability to the United States Court of Appeals for Veterans Claims (Court). In April 2020, pursuant to a Joint Motion for Remand (Joint Motion), the Court vacated the Board's January March 2019 decision. The Board remanded the matter in October 2020 and July 2021.

Also, as an initial matter, the Board notes that because of its March 2019 decision to grant an earlier effective date for the award of service connection for the lumbar spine disability, the Agency of Original Jurisdiction issued an April 2019 rating decision that effectuated that award and assigned an initial rating of 10 percent, effective from January 1, 2001, to March 27, 2013. The Veteran was notified of this decision in October 2019. In December 2019, the Veteran filed a VA Form 20-0995, Decision Review Request: Supplemental Claim regarding the October 2019 notification letter (and April 2019 rating decision) and its decision to assign an initial 10 percent rating prior to March 27, 2013, for the Veteran's service-connected lumbar spine disability.  At this matter is being addressed under the Appeals Modernization Act (AMA), it is not for consideration in this Legacy Appeals decision.

Entitlement to an initial rating in excess of 20 percent from March 27, 2013

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3.

A Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore, not be reflected on range-of-motion testing. Additionally, 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in §§ 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or § 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria.").

Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011).

In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint.

In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination.

Diagnostic Code 5242 provides that degenerative arthritis of the spine is to be rated under the General Rating Formula. Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula or under the Formula for Rating IVDS, whichever results in the higher rating when all disabilities are combined. 38 C.F.R. § 4.25.

Under the General Rating Formula, a 40 percent rating is 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. 38 C.F.R. § 4.71a.

The Formula for Rating IVDS provides that 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 is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a.

For purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1).

Under the General Rating Formula, a 40 percent rating is 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. 38 C.F.R. § 4.71a.

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).

The Board notes that effective February 7, 2021, during the pendency of this appeal, VA's Schedule, 38 C.F.R. Part 4, was amended with regard to rating musculoskeletal disabilities. 85 Fed. Reg. 76453 (Nov. 30, 2020).

VA's General Counsel, in a precedent opinion, has held that when a new regulation is issued while a claim is pending before VA, unless clearly specified otherwise, VA must apply the new provision to the claim from the effective date of the change as long as the application would not produce retroactive effects. VAOPGCPREC 7-03; 69 Fed. Reg. 25179 (2003). The amended versions may only be applied as of their effective date. Before that time, only the former version of the regulation may be applied. VAOPGCPREC 3-00; 65 Fed. Reg. 33422 (2000). Importantly, the former version remains for consideration throughout the rating period on appeal, both prior to and after the effective date of the change. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The periods relevant to this decision are prior to and after the February 7, 2021, amendments.

As is applicable in this matter, while VA amended the criteria pertaining to rating IVDS, effective February 7, 2021, Diagnostic Code 5242 was only affected insofar as it was renamed degenerative disc disease other than intervertebral disc syndrome. See 85 Fed. Reg. 76453, 7662484 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a , Diagnostic Codes 5242, 5243). As discussed below, the Veteran does not have a confirmed diagnosis of IVDS requiring bed rest prescribed by a physician; therefore, the revised musculoskeletal regulations are not for application in this case.

In this matter, for the period beginning March 27, 2013, the Veteran's service-connected low back disability is rated 20 percent disabling.

The Veteran underwent a VA back examination in October 2014. The examiner noted the Veteran's complaints of back pain with flare-ups. He had spasms at times during flare-ups. The Veteran reported using a form-fitted mattress, heating pad and/or ice, and Motrin to treat his symptoms. He denied having any back surgery or injections. Range of motion testing of the thoracolumbar spine showed flexion to 70 degrees with pain beginning at 65 degrees; extension to 25 degrees with pain beginning at 10 degrees; lateral flexion to 25 degrees bilaterally, with pain beginning at 20 degrees bilaterally; right lateral rotation to 25 degrees with pain at 20 degrees; and left lateral rotation to 30 degrees with pain at 20 degrees. After repetitive use testing, flexion was 65 degrees, extension was 20 degrees, lateral flexion as 20 degrees bilaterally, right lateral rotation was 20 degrees, and left lateral rotation was 25 degrees. The bilateral paralumbar muscles were painful to palpation and muscle spasm resulted in abnormal gait or abnormal spinal contour. There was no ankylosis of the spine. Neurologic examination was normal and there was no radicular pain or other symptoms due to radiculopathy. X-ray studies revealed anterolateral osteophytic spurring, but no fracture, dislocation, or bone destruction. Disc spaces were within normal limits. There was evidence IVDS. The examiner estimated that during flare-ups, range of motion would be limited to flexion to 60 degrees, extension to 10 degrees, lateral flexion to 15 degrees bilaterally, and rotation to 15 degrees bilaterally. See October 2014 VA Spine Disability Benefit Questionnaires (DBQ).

A January 2018 VA Spine DBQ notes the Veteran's complaints of daily back pain. The Veteran reported the pain ranged from 4/10 to 10/10; at times, he was unable to get up from bed for three days due to back pain. He had not had any surgeries or injections. The Veteran stated he was unable to run anymore. He had difficulty walking and standing for long periods of time, walking up and down stairs, doing yard work, household chores, and shoveling snow. On examination, active range of motion was flexion to 45 degrees; extension to 18 degrees; right lateral flexion to 20 degrees; left lateral flexion to 22 degrees; right lateral rotation to 30 degrees; and left lateral rotation to 30 degrees. Passive range of motion testing was not performed. The Veteran declined repetitive use testing because he said it would cause additional pain that would last several days. The examiner opined that pain, fatigue, weakness, lack or endurance and incoordination would significantly limit functional ability with repeated use over a period of time, but was not able to describe this in terms of range of motion. Pain was noted with non weight bearing and weight bearing; tenderness was noted on palpation. No guarding or spasm was seen on examination. There was no ankylosis. Neurologic examination was normal and there was no radicular pain or other symptoms due to radiculopathy.

In a statement received in December 2019, the Veteran reported a loss of mobility and flexibility in his lower spine, along with an inability to handle any impact to his lower back that interfered with his ability to run and perform other daily activities. He stated, "I cannot move laterally to the side and my forward flexion of the thoracolumbar spine is 30 degrees or less, which has been a persistent problem that has gotten worse since the middle to the late 1990's." He added that since that time he was unable to bend over or get up off the ground without major difficulty and pain. He also stated:

Over the years I have dealt with incapacitating extreme low back pain episodes that last from a few days up to a couple of weeks. These occurrences happen on average 3 times a year. During these episodes, I cannot get out of bed without assistance and I have to crawl (cannot stand erect or walk) in order to use the bathroom facilities. 

An April 2021 Back Conditions DBQ notes the Veteran's history of repetitive back trauma in service. The Veteran reported since onset, the condition had improved. Currently, he reported back pain two or three times per year; he denied flare-ups. On examination, active and passive range of motion was full (90 degrees flexion, 30 degrees extension, 30 degrees lateral flexion bilaterally, and 30 degrees lateral rotation bilaterally) without pain. No guarding, muscle spasm, or ankylosis were shown. The Veteran did not have IVDS. Neurologic examination was normal and there was no radicular pain or other symptoms due to radiculopathy.

A September 2021 Back Conditions DBQ notes the examiner reviewed the claims file and elicited a history of the Veteran's low back disability from the Veteran. The Veteran reported his low back disability had worsened over the past two years. Specifically, the range of motion for bending and twisting had decreased. He stated he was unable to do anything involving impact or bending/twisting at waist. He also reported daily aching pain (3/10) and night pain (4/10). The Veteran reported sitting too long could cause low back pain and spasms. He also reported flareups triggered by random movements; these occurred a couple times a year and caused sharp pain (10/10) and spasms for three to four days. He denied lower extremity radiculopathy. On examination, active and passive range of motion testing showed flexion to 70 degrees with pain; extension to 20 degrees with pain; lateral flexion to 25 degrees bilaterally with pain; and lateral rotation to 25 degrees bilaterally with pain. The low back was tender (4/10) to palpation. Muscle spasm resulted in abnormal gait or abnormal spine contour. There was no guarding, ankylosis of the spine, or IVDS. Repetitive use testing showed no additional loss of function or range of motion after three repetitions. The examiner opined that pain and weakness would significantly limit functional ability during flare-ups, and estimated range of motion would be limited to flexion to 60 degrees, extension to 10 degrees, lateral flexion to 10 degrees bilaterally, and rotation to 10 degrees bilaterally. Additionally, the examiner opined that pain and weakness would significantly limit functional ability with repeated use over a period of time, and estimated range of motion would be limited to flexion to 65 degrees, extension to 15 degrees, lateral flexion to 20 degrees bilaterally, and rotation to 20 degrees bilaterally. Neurologic examination was normal and there was no radicular pain or other symptoms due to radiculopathy.

VA and private treatment records from the period at issue document ongoing complaints of back pain. No findings of ankylosis or bed rest prescribed by a physician are noted.

In light of the probative evidence above, the Board finds that a rating higher than 20 percent is not warranted for the Veteran's service-connected low back disability for this period (beginning March 27, 2013). The evidence does not demonstrate forward flexion of the thoracolumbar spine that was 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine (i.e., where the spine is fixed in a neutral or upright position). The evidence also does not demonstrate IVDS with incapacitating episodes.

The Board acknowledges the Veteran's lay reports of symptoms, including pain. Even considering this, however, the degree of additional limitation reflected by the record would not result in limitation of motion more nearly approximating flexion limited to 30 degrees or ankylosis. Again, it is not shown that he had incapacitating episodes as defined by Note (1) of the Formula for Rating Intervertebral Disc Syndrome (requiring bed rest prescribed by a physician). See 38 C.F.R. § 4.71a.

The Board has also considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). A minimum compensable evaluation for a joint disability is warranted for painful motion under 38 C.F.R. § 4.59. However, a rating in excess of the minimum compensable rating must be based on demonstrated functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Here, the Veteran has already received a compensable rating based in part on pain in his back. Furthermore, the evidence of record as noted above does not show that pain, weakness, or other symptoms, effectively functionally limits the forward flexion in the Veteran's lumbar spine to 30 degrees or less. As such, a rating in excess of 20 percent is not warranted based on functional loss.

In sum, evidence does not support a rating in excess of 20 percent under the General Rating Formula for Diseases and Injuries of the Spine, Formula for Rating IVDS, or heron the basis of functional loss due to pain or weakness under 38 C.F.R. §§ 4.40 and 4.45. A rating in excess of 20 percent for a back disability is denied.

Moreover, as the medical evidence for the period does not disclose any neurological abnormalities associated with the lumbar spine, such as lower extremity radiculopathy and/or bladder abnormalities, an additional separate neurological compensable rating is not warranted.

Finally, it is noted the Veteran's private attorney argued in October 2021 correspondence that the September 2021 VA examination was inadequate because it failed to discuss the Veteran's medical history and assertions as directed by the July 2021 Board remand, particularly the December 2019 statement from the Veteran. In this regard, the September 2021 VA examiner noted she reviewed the electronic claims file, which includes the December 2019 statement from the Veteran. She also obtained a history of the Veteran's low back disability directly from the Veteran, to include his current symptoms. These symptoms (which include an inability to bend or do anything involving impact, as well as complaints of incapacitating episodes several times a year) are essentially the same as those noted in December 2019. Therefore, the Board finds that contrary to the private attorney's argument, there has been substantial compliance with the July 2021 remand. In addition, it is noted that the Veteran's attorney has raised concerns regarding the qualifications of the September 2021 VA examiner. VA satisfies its duty to assist when it provides a medical examination performed by a person who is qualified through education, training, or experience to offer medical diagnosis, statements, or opinions, whether that is a doctor, nurse practitioner, or physician's assistant. See Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (physician's assistant was competent to perform examination); Goss v. Brown, 9 Vet. App. 109 (1996) (recognizing that nurses' statements regarding nexus were sufficient to make a claim well grounded); Williams v. Brown, 4 Vet. App. 270, 273 (1993) (finding opinions of a VA registered nurse therapist competent medical testimony and requiring the Board to provide reasons or bases for finding those opinions unpersuasive). In this case, neither the Veteran nor his private attorney has offered any specific argument as to why a nurse practitioner practicing in the field of general practice was unqualified to conduct the September 2021 VA examination. 

In conclusion, the Board finds the Veteran's claim for a rating in excess of 20 percent from March 27, 2013, for service-connected low back disability must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

 

 

A. ISHIZAWAR

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Fletcher, Kathleen

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.