Citation Nr: 21069618 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 16-52 882 DATE: November 19, 2021 ORDER Entitlement to an increased rating for intervertebral disc syndrome with degenerative arthritis of the lumbar spine, rated as 20 percent disabling prior to September 16, 2019 and 40 percent thereafter, is denied. FINDINGS OF FACT 1. For the period on appeal prior to September 16, 2019, the Veteran's intervertebral disc syndrome degenerative disc disease and degenerative arthritis was manifested forward flexion limited to 35 degrees, at worst, in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups without ankylosis, incapacitating episodes or bowel impairment. 2. For the period on appeal beginning on September 16, 2019, the Veteran's intervertebral disc syndrome degenerative disc disease and degenerative arthritis did not manifest in unfavorable ankylosis of the entire spine or bowel impairment. CONCLUSION OF LAW The criteria for entitlement to an increased rating for intervertebral disc syndrome with degenerative arthritis of the lumbar spine, rated as 20 percent disabling prior to September 16, 2019 and 60 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from December 1987 to December 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision issued by a Department of Veterans Affairs Regional Office (RO). This matter previously came before the Board in November 2018, whereupon it was remanded to allow for the Veteran to be provided with a VA examination to assess the current severity of his back disability. The Veteran was then provided a VA examination for his back in October 2019, and the matter subsequently returned before the Board in June 2021. The Board found the October 2019 examination to be incomplete because it did not address functional loss due to flareups and did not adequate test on active and passive motion. The Board thus remanded the matter back to the RO for additional development, specifically to provide the Veteran with an adequate examination for his back disability. A new VA examination was provided in August 2021. The examiner elicited information from the Veteran regarding flareups and any resulting functional loss. The examiner also tested for range of motion on active motion, both on weight-bearing and non-weight bearing. The examiner provided an explanation for why passive motion could be conducted (i.e. that it was not medically advisable as it may cause severe pain to the Veteran). The Board finds this examination adequate. The Board therefore determines that there has been substantial compliance with its previous remand. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers the right to compliance with remand orders). The matter has now returned to the Board for further appellate action. 1. Entitlement to an increased rating for intervertebral disc syndrome with degenerative arthritis of the lumbar spine, rated as 20 percent disabling prior to September 16, 2019 and 40 percent thereafter, is denied. The Veteran asserts that he is entitled to an increased rating for his intervertebral disc syndrome, specifically because his symptoms are more severe than contemplated by the currently assigned ratings. The Veteran has contended that the limitations placed on him by his condition, such as difficulty walking, standing, and being in constant pain, warrant a higher evaluation. The Veteran's wife has also submitted statements in support of the Veteran's claim, indicating that the Veteran lays in bed for hours daily, relies heavily on Tylenol to deal with constant pain, and is unable to perform basic household chores. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered because 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. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to 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. Separate ratings can be assigned for separate periods based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. 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, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). In this regard, 38 C.F.R. § 4.59 requires that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." Correia v. McDonald, 28 Vet. App. 158 (2016). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Although the Board has an obligation to provide reasons and bases supporting its decision, there is no obligation to discuss, in detail, the extensive evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran's claim. The Veteran's intervertebral disc syndrome with degenerative arthritis of the lumbar spine is rated under Diagnostic Code 5243, which assigns ratings based upon the General Rating Formula for Diseases and Injuries of the Spine (General Formula). 38 C.F.R. § 4.71a. In regard to the General Rating Formula for Diseases and Injuries of the Spine as applied to the lumbar spine disability, a 20 percent rating is assigned 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 assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, 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. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243). Additionally, the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides for a 40 percent rating 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 evaluation is provided for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Formula Based on Incapacitating Episodes. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees; extension is 0 to 30 degrees; left and right lateral flexion and rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 2. Any associated objective neurologic abnormalities, including, but not limited to bowel or bladder impairment, should be evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1. The Board notes that effective February 7, 2021, the criteria for schedule of ratings for the musculoskeletal system was revised. See 86 Fed. Reg. 8142 (Feb. 4, 2021) (codified at 38 C.F.R. pt. 4). In the instant case, the diagnostic criteria for Diagnostic Codes 5242 and 5243 were unchanged in the revised rating criteria. Therefore, the February 2021 musculoskeletal criteria do not apply to the Veteran's claims on appeal; and the appropriate criteria is discussed below. VA law additionally provides for higher rating considerations on additional factors such as further limitation on motion due to pain on use and x-ray findings. A 10 percent evaluation is to be granted upon a showing of x-ray findings of arthritis accompanied with pain upon motion of the affected joint or body part. See DeLuca v. Brown, 8 Vet. App. 202 (1995); See also VAOPGCPREC 9-98; Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). "Although pain may cause a functional loss, pain itself does not constitute functional loss." Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Painful motion is deemed to be limitation of motion and warrants the minimum compensable rating for the joint, even if there is no actual limitation of motion. 38 C.F.R. § 4.59; Lichtenfels v. Derwinski; 1 Vet. App. 484, 488 (1991). The provisions of 38 C.F.R. § 4.59 relating to painful motion are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran was granted service connection for intervertebral disc syndrome with degenerative arthritis of the lumbar spine, effective April 15, 2010. The Veteran's condition has been evaluated as 20 percent disabling from April 15, 2010 to September 15, 2019 and 60 percent disabling thereafter. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). As such, the Board will review evidence from each of these periods on appeal to determine whether the Veteran's disability has been properly rated throughout. VA treatment notes from 2008 indicate back spasms. Magnetic Resonance Imaging (MRI) findings from October 2008 reveal a small disc bulge in the lumbar spine. Pain is indicated as well. A private treatment note dated October 2010 notes the Veteran's low back pain. The note also mentions that the Veteran has been treated with epidural steroid injections to offer pain relief, but that pain was still ongoing. The Veteran was provided an examination with a VA-contracted practitioner for his lumbar spine in April 2011. The examination made of range of motion findings of forward flexion to 35 degrees and extension to 30 degrees. Guarding, muscle spasms, or ankylosis were not discussed. Upon VA examination in April 2013, the examiner confirmed diagnoses for degenerative joint disease of the lumbar spine and noted the Veteran's ongoing back pain. Range of motion testing was conducted and revealed findings of 60 degrees forward flexion of the lumbar spine. Guarding, muscle spasms, or ankylosis were not found. MRI findings from March 2014 document ongoing lower back pathology. Accompanying treatment notes mention the Veteran suffering from chronic low back pain. A February 2015 private treatment note mentions the Veteran having spasms in his lower back. However, his gait was noted as normal. Range of motion findings were flexion to 60 degrees, upon which pain onset. A September 2016 documented the Veteran returning for treatment as pain had resumed after a temporary relief brought on by steroid injections. The note mentioned the Veteran suffering from ongoing low back pain, described as a 5 out of 10, and increasing upon standing, exertion, and prolonged sitting. The notes are silent for any indication of ankylosis however. VA treatment notes from throughout 2011 to 2021 document the Veteran's ongoing chronic lower back pain. An April 2019 note mentions lumbar disc herniation. A June 2019 treatment note is negative for spondylosis. MRI findings from July 2019 reveal multi-level disc desiccation and mild stenosis in the lumbar spine. Lordotic straightening (reversed lordosis) was also noted. Scoliosis or subluxations were not found. Overall impression stated degenerative disc disease had progressed slightly. The notes do not contain range of motion findings. The notes are entirely silent for ankylosis. A September 16, 2019 private lumbar Disability Benefits Questionnaire (DBQ) report indicates that the Veteran had debilitating pain with an inability to rise without pain from a sit or supine position as well as difficulty standing, walking, bending, driving or lifting/carrying weight Range of motion testing revealed forward flexion to 20 degrees due to pain and that repetitive motion testing did not reveal additional limitation of motion. Flexion was found to be to 10 degrees. There was no ankylosis. IVDS was found and IVDS resulted in at least six weeks of incapacitating episodes over the past 12 months. The Veteran's October 2019 VA examination for lumbar spine confirmed the Veteran's diagnoses of degenerative arthritis of the spine and IVDS. Chronic and constant lower back was noted with degenerative changes in the lower back. The Veteran reported flareups resulting in "2-3 weeks where [he] couldn't do anything because of [his] back". The flareups were noted as "severe" and occurring at a frequency of every two months. The Veteran also reported further functional loss due to being unable to sit for prolonged periods due to intense pain. Range of motion testing revealed findings of forward flexion of the lumbar spine to 40 degrees. This limited range of motion itself was noted as causing functional loss as the Veteran was unable to fully flex his back. Painful motion limited range of motion in flexion, extension, and rotation; this was also noted as functional loss/limitation by the examiner. However, the examiner also noted that pain, weakness, fatigability, or incoordination did not significant limit the Veteran's functional ability with repeated use over time. The Veteran was found to have guarding resulting in abnormal gait or abnormal spine contour. Objective evidence of localized tenderness or pain on palpation was not found, however. The Veteran was also found able to perform repetitive use testing with at least three repetitions, without further functional loss. Spasms were not indicated. Ankylosis, either favorable or unfavorable, was also not found. In regard to IVDS, the examiner found that the Veteran had not had any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. Pursuant to the Board's June 2021 remand directives, the Veteran was provided another VA examination for his back in August 2021. The examiner listed the Veteran's symptoms as chronic pain and fatigue, limited range of motion, and difficulty performing daily activities. The Veteran reported flareups occurring 4-6 times per year; manifesting as severe incapacitation episodes requiring bed rest (the most recent bed-rest period in July 2020). The flareups lasted approximately four to five days and were triggered by prolonged standing, sitting, strenuous activity, or repeated bending. Active range of motion testing results revealed forward flexion of the lumbar spine to 45 degrees. Pain was noted upon flexion, extension, and rotation; and noted to cause limitation in each. Passive range of motion could not be tested as it was medically contraindicated and could result in severe pain or the risk of further injury to the Veteran. Abnormal guarding was found. In regard to whether pain, fatigability, weakness, lack of endurance or incoordination caused functional limitation, the examiner noted that the Veteran's pain indeed caused such functional loss. This loss resulted in lower range of motion findings of forward flexion to 40 degrees. The examiner attributed this loss to the Veteran's pain. However, the Veteran was found able to perform repetitive use testing with at least three repetitions, without further functional loss. The examiner did not find the Veteran to be suffering from spasms. No incidence of ankylosis, either favorable or unfavorable was found. In regard to IVDS, the examiner found that the Veteran had not had any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Board find that this examination is in compliance with the Correia and Sharp holdings. For the appeal period prior to September 14, 2019, the Veteran's intervertebral disc syndrome with degenerative arthritis of the lumbar spine manifested as forward flexion that was limited to 35 degrees at this April 2011 VA examination. Absent indication by the Veteran or other evidence suggesting additional limitation of motion during flare-up or after repetitive use over time there is no reason to suspect range of motion is limited any more than reflected during examination and additional inquiry in this regard is unnecessary. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 206-07. The Veteran's intervertebral disc syndrome with degenerative arthritis of the lumbar spine is most accurately represented by the 20 percent rating criteria throughout the entire period on appeal. C.F.R. § 4.71a, Diagnostic Code 5242. Moreover, ankylosis of the spine is not shown by the medical evidence or alleged by the Veteran. Given the above, a higher rating is not warranted based on limitation of motion for the appeal period prior to September 14, 2019. For the appeal period beginning on September 15, 2019, a rating in excess of 60 percent the Veteran's intervertebral disc syndrome with degenerative arthritis of the lumbar spine did not manifest as unfavorable ankylosis. An August 2019 and August 2021 VA examinations explicitly found that there was no ankylosis on examination. Accordingly, the Board finds that a rating higher than 60 percent is therefore not warranted. For purposes of assigning evaluations under 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. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note 1. The record does not show, and the Veteran has not alleged, that he has been prescribed bedrest or had incapacitating episodes. The Board notes that he experienced incapacitating episodes of IVDS requiring bed rest in the August 2021 VA examination and the September 2019 private DBQ examination report indicates that the Veteran had incapacitating episodes; however, there is no indication in the clinical record that such bedrest was doctor prescribed. Therefore, the IVDS Rating Formula is not applicable. The Board has separately considered whether an additional rating is warranted for nerve impairments to include bladder or bowel impairment. The Board also notes that the Veteran is already in receipt of separate ratings for right and left lower extremity radiculopathy as well as urinary frequency. The Veteran has not alleged, and the record does not establish, bowel impairment. Thus, a separate rating for bowel impairment is not warranted. The Board has also considered the lay evidence of record, namely the statements of the Veteran submitted in support of the instant claim. Although laypersons are competent to report on observable symptoms, diagnosing the severity of a lumbar spine disorder according to the appropriate diagnostic codes is a complex medical matter reserved for the purview of qualified medical professionals; such matters fall outside the realm of common knowledge of a layperson. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (laypersons not competent to diagnose cancer). Thus, while the Veteran is competent, as a layperson, to report observable symptomatology as it comes to him through his senses, he does not possess the requisite medical knowledge and is not competent to diagnose the specific level of disability of a lumber spine condition according to the appropriate and applicable diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). As such, the Board finds the statements of medical personnel as to the severity of the Veteran's back disability to be the most competent evidence of record. The Board has also considered the effects of repeated use over time and flare-ups along with the adequacy of the VA examinations in light of the Court's holdings in Correia and Sharp. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Correia decision provides that VA orthopedic examinations should include testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing. Additionally, the Sharp holding outlines VA examiners' obligation to elicit information regarding flare-ups of a musculoskeletal disability if the examination is not conducted during such a flare-up, and to use this information to characterize additional functional loss during flare-ups. The Board notes that the spine is not a paired joint and there is no paired joint to test. The April 2011 and April 2013 VA examinations were conducted prior to the Correia and Sharp holdings and therefore provided only partial information. Regarding repeated use over time, the Board notes that all of the Veteran's VA examinations conducted repetitive-use testing and concluded that no additional functional loss or range of motion occurred after three repetitions. Although the April 2011 and April 2013 VA examiners did not test for passive range of motion, the Board notes that active range of motion testing usually results in further limitation than passive range of motion testing. See Massie v. Shinseki, 25 Vet. App. 123, 131 (2011); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Additionally, the October 2019 and August 2021 VA examiners provided an adequate explanation for why passive range of motion testing could not be conducted, i.e. that it would be too painful for the Veteran and/or may result in further injury. Therefore, the Board finds that the VA examinations are compliant with Correia v. McDonald, supra, and the Board places great probative emphasis on the range of motion findings therein, which in turn do not support assignment of a higher rating for any period on appeal. Additionally, the examiner elicited information from the Veteran regarding flareups and addressed the functional limitation caused by any such flareups. Therefore, the examinations of record are adequate for VA purposes. The Board has also considered whether a further staged rating under Hart, supra, is appropriate for the Veteran's service-connected intervertebral disc syndrome disability; however, the Board finds that his symptomatology has been stable throughout each appeal period. Therefore, assigning a further staged rating for this disability is not warranted. Further, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with regard to such claim. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). The Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a TDIU rating, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. The Veteran's current employment status is not clear from the record. However, the record does not indicate that the Veteran is entirely precluded from gaining or maintaining substantial employment as a result of his intervertebral disc syndrome. Therefore, a TDIU has not been raised. A comprehensive review of the evidence of record leads the Board to the conclusion that a 20 percent rating is warranted for the appeal period prior to September 16, 2019. Thus, that evaluation should be continued and a higher rating is not warranted for that appeal period. The Board also finds that a 60 percent rating is properly assigned for the appeal period from September 16, 2019 onward. Higher ratings are not warranted for this period because the Veteran's disability picture does not align with the only higher rating available, 100 percent, as the medical evidence of record is negative for ankylosis of the entire spine. The benefit of the doubt doctrine is not applicable as the evidence preponderates against the Veteran's claim. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra.. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kashif I. Ali, 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.