Citation Nr: 21069326 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 16-02 572 DATE: November 18, 2021 ORDER For the period prior to June 17, 2019, entitlement to a disability rating in excess of 10 percent for lumbosacral strain, with multilevel degenerative disc disease, is denied. For the period from June 17, 2019, entitlement to a disability rating of 20 percent for degenerative disc disease, lumbar spine, is granted, but a disability rating in excess of 20 percent is denied. FINDINGS OF FACT 1. For the period prior to June 17, 2019, the lumbar spine is not manifested by forward flexion of 60 degrees or less, nor is there a showing of ankylosis of the entire thoracolumbar spine, or of incapacitating episodes having a total duration of at least 2 weeks. 2. For the period from June 17, 2019, the lumbar spine is not manifested by forward flexion of 30 degrees or less, nor is there a showing of ankylosis of the entire thoracolumbar spine, or of incapacitating episodes having a total duration of at least 4 weeks. CONCLUSIONS OF LAW 1. For the period prior to June 17, 2019, the criteria for a disability rating in excess of 10 percent for lumbosacral strain, with multilevel degenerative disc disease, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Part 4, Diagnostic Code 5242. 4. For the period from June 17, 2019, the criteria for a disability rating in excess of 20 percent for degenerative disc disease, lumbar spine, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Part 4, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from March 1992 to November 1998. This matter came to the Board of Veterans' Appeals (Board) from an October 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which denied an increased rating for lumbosacral strain, with multilevel degenerative disc disease. This matter was remanded in March 2021. In a July 2021 rating decision, a 20 percent disability rating was assigned to degenerative disc disease, lumbar spine, effective July 12, 2021. Although an increased rating was granted, the issue remains in appellate status, as the maximum schedular rating has not been assigned. AB v. Brown, 6 Vet. App. 35, 38 (1993). In March 2021, VA sent correspondence to the Veteran requesting that he complete authorizations pertaining to private medical providers; the Veteran did not respond. The Board notes that while VA has a duty to assist the Veteran in the development of his claim, the Veteran has a duty to cooperate with VA. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Thus, the Board will proceed with an analysis based on the current evidence of record, to include VA treatment records, examination reports, and lay assertions of the Veteran. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. The Board has reviewed all the evidence in the Virtual folders, which includes: his contentions, treatment records, and VA examination reports. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). A 10 percent rating is in effect for lumbosacral strain, with multilevel degenerative disc disease, rated 10 percent disabling, effective December 1, 1998. The Veteran's increased rating claim was received on June 9, 2014. A 20 percent disability rating was assigned to degenerative disc disease, lumbar spine, effective July 12, 2021. The ratings are assigned per 38 C.F.R. § 4.71a, Diagnostic Code 5242 (degenerative arthritis of the spine). The Board notes VA revised the rating criteria for evaluating spine disorders, effective February 7, 2021. See 85 Fed. Reg. 76,453 (Nov. 30, 2020, as amended). Generally, a change in rating criteria during the pendency of the claim applies prospectively, if more favorable. Here, the changes to the rating criteria evaluating disorders of the spine have no impact on the Veteran's rating. 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. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5. 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. 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. For the period prior to June 17, 2019, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the lumbar spine disability, but the Board finds that a 20 percent disability rating is warranted from June 17, 2019, which corresponds to the date of a VA treatment record. For the period prior to June 17, 2019, the Board acknowledges the Veteran's lay reports of symptoms such as pain and flare-ups. However, even considering the Veteran's lay reports of symptoms, the degree of additional limitation would not result in limitation of motion more nearly approximately forward flexion of the thoracolumbar spine to 60 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A September 2014 C&P examination reflects flexion to 90 degrees or greater with no objective evidence of painful motion. Extension was to 20 degrees with no objective evidence of painful motion. Right lateral flexion was normal and left lateral flexion was to 25 degrees with no objective evidence of painful motion. Right and left lateral rotation was normal with no objective evidence of painful motion. There was no additional limitation in range of motion on repetitive testing. The examiner found no functional loss or functional impairment of the spine. There was no localized tenderness or pain to palpation for joint and/or soft tissue of the thoracolumbar spine. There was no muscle spasm and no abnormal gait or abnormal spinal contour. He did not have guarding of the thoracolumbar spine resulting in abnormal gait or abnormal spinal contour. His muscle strength was normal, and he did not have muscle atrophy. A June 2015 VA treatment record reflects that the back was tender to palpation in the left paraspinal muscles in the upper lumbar region, but Murphy's sign was negative. 07/30/2018 CAPRI at 91. A March 2016 VA treatment record reflects that examination of the back revealed a normal midline pain and no sacroiliac pain. He had tenderness in the right paraspinous lumbar area increased with range of motion. His gait was without compromise, and neurological testing was normal. Id. at 84. A September 2016 VA treatment record reflects tenderness in the bilateral paraspinous muscle areas of the lumbar spine. He had no sacroiliac or midline pain. He had no straight leg raising pain or paresthesias and his strength was otherwise excellent bilaterally. Id. at 45. The objective findings combined with the subjective complaints of the Veteran do not support a 20 percent rating for his lumbar spine disability, as even with consideration of his functional limitations forward flexion of 60 degrees or less is not shown, nor muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. From June 17, 2019, the Board finds that the preponderance of the evidence supports a 20 percent disability rating for his lumbar spine disability, but a rating in excess of 20 percent is not warranted. The Board acknowledges the Veteran's lay reports of pain and stiffness in the back with flare-ups. A June 17, 2019 VA treatment record reflects the Veteran's report that he drinks vodka to control his upper and low back pain and will occasionally take a Motrin/Tylenol combination if his back flares up, but it does not help with his pain. He states that picking up a case of water threw his back out. When he has a flare of pain in the past, he was given Vicodin and Flexeril, but he was taking double the prescribed amount of Vicodin. 03/15/2021 CAPRI at 131. An April 21, 2020 VA treatment record reflects chronic lumbar and thoracic back pain typically a 5 on a 10-point scale, peaking at a 10. He reported that the pain is typically dull but is at times "debilitating" and "crippling." Id. at 26. Based on the subjective complaints and objective findings contained in these VA treatment records and based on the objective findings contained in the July 2021 C&P examination report, the Board finds that the 20 percent rating is warranted from June 17, 2019. The symptoms reflected in the June 2019 and April 2020 treatment records are consistent with the findings shown on examination in July 2021. From June 17, 2019, however, even considering the Veteran's lay reports of symptoms and noted functional limitations, the degree of additional limitation would not result in limitation of motion more nearly approximately forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Thus, a disability rating in excess of 20 percent is not warranted. The July 2021 C&P examination reflects flexion to 60 degrees, with pain. Extension, bilateral lateral flexion, and bilateral rotation were all 20 degrees with pain. Passive range of motion was the same as active range of motion. There was evidence of pain on weight-bearing, active motion, and passive motion which causes functional loss. He reported difficulty repetitively lifting any weights. There were no objective findings of crepitus or localized tenderness or pain on palpation of the joint or associated soft tissue. On repetitive motion testing, flexion was to 55 degrees and extension, bilateral lateral flexion and bilateral rotation were to 15 degrees. He had pain and lack of endurance which caused functional loss. The examiner estimated that after repeated use over time, his flexion would be reduced to 50 degrees, and his extension, bilateral lateral flexion and bilateral rotation would be reduced to 10 degrees. The examiner estimated that during flare-ups, his flexion would be reduced to 45 degrees, and his extension, bilateral lateral flexion and bilateral rotation would be reduced to 10 degrees. He had muscle spasm resulting in abnormal gait or abnormal spine contour, without guarding or localized tenderness. There were no additional contributing factors of disability. He did not have muscle atrophy and his reflexes were normal. He had no ankylosis of the spine. The objective findings combined with the subjective complaints of the Veteran do not support a 40 percent rating for his lumbar spine disability, as even with consideration of his functional limitations forward flexion of 30 degrees or less is not shown, nor favorable ankylosis of the spine. The medical evidence of record does not reflect any incapacitating episodes nor prescribed bedrest due to his lumbar spine disability, thus there is no basis for the assignment of higher ratings per Diagnostic Code 5243 for either period considered. In consideration of the DeLuca factors, there have been objective findings of pain and lack of endurance. However, the objective findings contained within the record, based on examination reports and treatment records, do not more nearly approximate the criteria for higher ratings even with consideration of pain and repetitive motion. The 10 percent in effect prior to June 17, 2019 compensates the Veteran for his reported flares, limitation of extension and left lateral flexion, and objective findings of degenerative disc disease. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. From June 17, 2019, the 20 percent rating in effect for limitation of motion symptomatology compensates him for limited and painful motion and assigning the next higher rating for painful motion would not accurately assess the resulting functional loss, even when considering the pain. The respective 10 percent and 20 percent ratings take into consideration the Veteran's functional loss associated with his lumbar spine. The Board finds that 38 C.F.R. §§ 4.40, 4.45 and 4.59 do not provide a basis for increased ratings for any period contemplated by this appeal. See DeLuca, 8 Vet. App. at 204 -07. In other words, the functional loss does not most nearly approximate the criteria for the next-higher respective 10 percent and 20 percent evaluations. With regard to consideration of flare-ups per Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Board notes that while the September 2014 examination reflects the Veteran's subjective complaints of flares, the examiner found no limitation of flexion and no pain on motion, to include on repetitive testing. While the examiner did not specifically consider the functional effects of the Veteran's reported flares per Sharp, the examiner found no functional loss or functional impairment of the spine. As detailed, the July 2021 examiner found additional limitation of motion in consideration of flare-ups, but such would not provide the basis for a rating in excess of 20 percent. There is no evidence, to include the Veteran's own statements, from which to conclude that the disability picture during flare-ups would most nearly approximate flexion limited to 60 degrees for the period prior to June 17, 2019, and flexion limited to 30 degrees for the period from June 17, 2019. Indeed, for the period prior to June 17, 2019, as detailed, flexion was normal without pain; and, from June 17, 2019, flexion was estimated to be 45 degrees during flare-ups. Finally, it is noted that the Veteran has not raised any challenges with respect to any deficiencies in the examination reports. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Continued on next page... VA treatment records and examination reports do not reflect subjective complaints or objective findings of radiculopathy of the lower extremities, nor any findings of bowel or bladder complaints associated with his lumbar spine disability. Thus, there is no basis for the assignment of separate compensable ratings for neurological symptoms. Marissa Caylor Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.W. Kreindler, 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.