Citation Nr: 21069852 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 13-11 682 DATE: November 22, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for degenerative disc disease of the lumbar spine from September 30, 2009 to July 20, 2014 is denied. Entitlement to a disability rating in excess of 20 percent for degenerative disc disease of the lumbar spine from May 4, 2015 to September 14, 2017 is denied. Entitlement to a disability rating in excess of 40 percent for degenerative disc disease of the lumbar spine from September 14, 2017 is denied. FINDINGS OF FACT 1. From September 30, 2009 to July 20, 2014 and from May 4, 2015 to September 14, 2017, the preponderance of the evidence does not indicate that the Veteran's disability resulted in forward flexion of the thoracolumbar spine to 30 degrees or less, ankylosis of the thoracolumbar spine, or of periods of prescribed bedrest. 2. From September 14, 2017, the preponderance of the evidence does not indicate that the Veteran's disability resulted in ankylosis of the thoracolumbar spine or 6 weeks or more of prescribed bedrest. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 20 percent for degenerative disc disease of the lumbar spine from September 30, 2009 to July 20, 2014 and from May 4, 2015 to September 14, 2017 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5003, 5237-5243. 2. The criteria for entitlement to a disability rating in excess of 40 percent for degenerative disc disease of the lumbar spine from September 14, 2017 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5003, 5237-5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from June 1977 to June 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2010 and October 2021 rating decisions of a VA Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a February 2013 hearing before the Board of Veterans' Appeals (Board). The issue of entitlement to an increased rating for a low back disability was remanded by the Board in March 2015 and August 2017. In a February 2020 Board decision, the Board denied ratings in excess of 20 percent for the Veteran's back disability for the periods from September 30, 2009 to July 20, 2014 and from May 4, 2015 onward. A 40 percent rating was granted for the period from July 21, 2014 to May 3, 2015, and a disability rating in excess of 20 percent for radiculopathy of the left lower extremity was denied. Subsequently, the Veteran appealed the denial of his increased rating claims to the United States Court of Appeals for Veterans Claims (Court/CAVC). In a February 2021 Joint Motion for Partial Remand, the parties agreed that the Court could not disturb the Board's favorable finding concerning the period from July 21, 2014 to May 3, 2015 for the back disability, and they asked the Court to dismiss the appeal of the Board's decision to the extent that it found that Appellant was not entitled to a disability rating in excess of 40 percent for DDD of the lumbar spine for the period from July 21, 2014, to May 3, 2015 and a rating in excess of 20 percent for radiculopathy of the left lower extremity as secondary to the service-connected disability of DDD of the lumbar spine. Accordingly, only the appeal for a staged increased ratings for the Veteran's back disability for the periods September 30, 2009 to July 20, 2014 and from May 4, 2015 to present are considered in this decision. In a March 2021 decision, the Court granted the parties' Joint Motion for Partial Remand (JMPR), partially vacated the Board's February 2020 decision, and remanded the matter to the Board for action consistent with the ruling. Finally, in a July 2021 decision, the Board remanded the Veteran's claims for additional development. In October 2001, the RO granted a 40 percent rating as of September 14, 2017. The Board finds that the RO substantially complied with its remand directives, and the Board may now proceed with adjudication. The Veteran asserts that his lower back disability is more severe than is reflected by his staged ratings. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. 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. 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. See 38 C.F.R. § 4.7. In determining the appropriate rating for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Factors of joint disability include increased or limited motion, weakened movement, excess fatigability, incoordination, and painful movement, including during flare-ups and after repeated use. DeLuca v. Brown, 8 Vet. App. 202, 206-08 (1995); 38 C.F.R. § 4.45. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40. Pain in a particular joint 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.; 38 C.F.R. § 4.40. Under 38 C.F.R. § 4.59, painful joints are entitled to at least the minimum compensable rating for the joint. Spinal conditions are evaluated under either the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (Formula for Rating IVDS), whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. §§ 4.25, 4.71a, DC 5242. The General Rating Formula provides for a 20 percent rating with 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 to 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. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243). According to the Formula for Rating IVDS, a 20 percent rating requires evidence of incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past twelve months; a 40 percent rating requires evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating requires evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS. An "incapacitating episode" is defined as 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). If IVDS is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment will be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. Id. at Note (2). In this case, while the Veteran's post-service VA and private treatment records reflect consistent complaints of lower back pain, they are negative for any evidence of ankylosis or manifestations of other associated neurologic abnormalities that are not already service connected. As described below, the evidence on balance also does not establish incapacitating episodes of prescribed bed rest due to IVDS. The Veteran's VA treatment records reflect treatment for his back disability throughout the period on appeal. However, they are negative for evidence of symptoms consistent with higher disability ratings for any of the periods on appeal. During the Veteran's October 2009 VA examination for back conditions, the Veteran had a current diagnosis for mild degenerative disc disease of the lumbar spine, but he did not report suffering from flare-ups. Forward flexion was to 80 degrees. There was no objective evidence of painful motion for any range of motion (ROM) testing. There was guarding of movement but no ankylosis. ROM measurement after repetitive use testing was identical to initial ROM. The examiner indicated that in the past 12 months the Veteran had experienced 20 episodes of incapacitating pain requiring bedrest prescribed by a physician. The VA examiner marked each section pertaining to IVDS "n/a", suggesting that the Veteran did not suffer from IVDS at the time of the examination. During the Veteran's December 2012 VA examination for back conditions, the Veteran had a current diagnosis for minimal degenerative changes of the lumbar spine, but he did not report suffering from flare-ups. Forward flexion was to 80 degrees. There was no objective evidence of painful motion for any range of motion (ROM) testing. ROM measurement after repetitive use testing revealed flexion to 70 degrees, with all other motion being identical to initial ROM testing. The Veteran was positive for pain on movement but was negative for localized tenderness, muscle spasm of the thoracolumbar spine, and guarding of the thoracolumbar spine. Muscle strength testing was 5/5 across all fields and reflexes were normal. The Veteran displayed decreased sensation in his left lower leg/ankle. The Veteran was positive for radiculopathy in his left lower extremity but negative for other neurologic abnormalities. The Veteran was negative for IVDS and ankylosis of the spine. He used a cane regularly for assistance with locomotion. During the Veteran's December 2013 Board hearing, the Veteran testified that he wore a back brace prescribed by a VA physician. He experienced popping and throbbing pain in his back, with pain radiating down to his hips and legs. He reported experiencing flare-ups, lasting between 20 minutes and 3 hours, which left him unable to bend over due to the increased pain. He stated that he had never been prescribed bed rest due to his back problems. During the Veteran's July 21, 2014 VA examination for back conditions, he had a current diagnosis for lumbosacral strain, but he did not report suffering from flare-ups. Forward flexion was to zero degrees. There was no objective evidence of painful motion for any ROM testing. ROM measurement after repetitive use testing revealed identical ranges of motion. The Veteran was negative for localized tenderness, muscle spasm of the thoracolumbar spine, and guarding of the thoracolumbar spine. Muscle strength testing was 5/5 across all fields and reflexes were normal. The Veteran displayed decreased sensation in his left lower leg/ankle. The Veteran was positive for radiculopathy with mild intermittent pain and numbness in his left lower extremity. The Veteran was negative for IVDS, ankylosis of the spine, and he used a brace and cane regularly for assistance with locomotion. The Veteran was negative for other neurologic abnormalities. An October 2014 VA treatment record reflects forward flexion to 30 degrees with acute, localized lower back pain. During the Veteran's May 4, 2015 VA examination for back conditions, the Veteran had a current diagnosis for lumbosacral strain and degenerative arthritis of the spine, but he did not report suffering from flare-ups. Forward flexion was to 75 degrees. Pain was noted during forward flexion but did not result in additional functional loss. There was evidence of pain on weight bearing. Repetitive use testing did not reveal additional loss of function or ROM. The Veteran was negative for localized tenderness, muscle spasm of the thoracolumbar spine, and guarding of the thoracolumbar spine. Muscle strength testing was 5/5 across all fields, and reflexes were normal. The Veteran was negative for decreased sensation in his lower extremities and negative for radiculopathy. The Veteran was negative for IVDS, ankylosis of the spine. He used a brace occasionally and a cane regularly for assistance with locomotion. No other neurologic abnormalities were noted. During the Veteran's September 2017 VA examination for back conditions, he had a current diagnosis for degenerative arthritis of the spine and IVDS, and he was positive for flare-ups that caused increased pain. Forward flexion was to 60 degrees. Pain was noted during all forms of initial ROM testing. There was evidence of pain on weight bearing. Repetitive use testing did not reveal additional loss of function or ROM. The Veteran was positive for guarding of the thoracolumbar spine that did not result in abnormal gait and for localized tenderness on palpation of the joints or associated soft tissue of the thoracolumbar spine. Muscle strength testing was 5/5 across all fields, and reflexes were normal. The Veteran was positive for radiculopathy, with moderate intermittent pain in both lower extremities. There was involvement of the sciatic nerve with moderate radiculopathy on both sides. The Veteran was negative for ankylosis of the spine. The Veteran's IVDS had not resulted in any acute episodes of required bed rest prescribed by a physician in the past 12 months. He used a brace constantly for assistance with locomotion. There was evidence of pain on passive range of motion testing and in non-weight bearing. The Veteran's pain, weakness, and fatigability or incoordination did not significantly limit his functional ability with repeated use over a period of time. During flare-ups, the Veteran's increased pain, fatigue, and lack of endurance did limit his functional ability, but the examiner was unable to describe the loss in terms of range of motion. The Veteran was negative for other neurologic abnormalities. In an August 2021 addendum VA medical opinion, the VA examiner opined that during a flare-up at the time of the September 2017 VA examination, the Veteran's ROM measurements would be as follows: forward flexion to 10 degrees, extension to zero degrees, and all other forms of motion to 10 degrees. During the Veteran's June 2021 VA examination for back conditions, he had a current diagnosis for degenerative arthritis of the spine and IVDS, and he was positive for flare-ups that caused increased pain. Forward flexion was to 40 degrees. Pain was noted during all forms of initial ROM testing. There was evidence of pain on weight bearing. Repetitive use testing did not reveal additional loss of function or ROM. The Veteran was positive for guarding of the thoracolumbar spine that resulted in abnormal gait or spinal contour. Muscle strength testing was 5/5 across all fields, and reflexes were normal. The Veteran was positive for radiculopathy, with moderate numbness, moderate intermittent pain, and severe paresthesias or dysesthesias in both lower extremities. There was involvement of the sciatic nerve with moderate radiculopathy on both sides. The Veteran was negative for ankylosis of the spine. The Veteran's IVDS had not resulted in any acute episodes of required bed rest prescribed by a physician in the past 12 months. There was evidence of pain on passive range of motion testing and in non-weight bearing. The Veteran's pain, weakness, and fatigability or incoordination did not significantly limit his functional ability with repeated use over a period of time. During flare-ups, the Veteran's increased pain, fatigue, and lack of endurance did limit his functional ability, resulting in forward flexion to 10 degrees. The Veteran was negative for other neurologic abnormalities. While the Veteran is competent to observe his back disability symptoms, he does not have the training or credentials to determine the current nature, extent, and severity of those symptoms. Additionally, he does not have the training or credentials to determine the proper disability evaluation concerning his back disability symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Throughout the appeal, there has been no finding of ankylosis. As to physician-prescribed bedrest, there are conflicting findings. The October 2009 VA examiner indicated that in the past 12 months the Veteran had experienced 20 episodes of incapacitating pain requiring bedrest prescribed by a physician, but this same examiner marked each section pertaining to IVDS "n/a." Likewise, the December 2012 VA examination indicated that the Veteran did not have IVDS. Importantly, during his December 2013 Board hearing, the Veteran denied that he had ever been prescribed bed rest due to his back problems. The 2017 and 2021 VA examinations both reflected that the Veteran's IVDS had not resulted in any periods of prescribed bedrest. Accordingly, the Board finds that the preponderance of the evidence does not indicate that the Veteran has experienced periods of prescribed bed rest during the period on appeal, let alone sufficient bed rest to support higher evaluations. For the period from September 30, 2009 to July 20, 2014, the Board finds the preponderance of the evidence is against granting an increased rating. There is no evidence that the Veteran's back disability resulted in forward flexion of the thoracolumbar spine to 30 degrees or less or of favorable ankylosis of the entire thoracolumbar spine. Based on these facts, the Board finds the preponderance of the evidence is against the Veteran's claim for an increased rating for said period. Accordingly, for the period from September 30, 2009 to July 20, 2014, the Veteran's claim for an increased rating is denied. For the period from May 4, 2015 to September 14, 2017, the Board finds the preponderance of the evidence is against granting an increased rating. During this period, there is no evidence that the Veteran's back disability resulted in forward flexion of the thoracolumbar spine to 30 degrees or less or of favorable ankylosis of the entire thoracolumbar spine. The Board is aware that Veteran is rated as 40 percent disabling before and after this period; however, the evidence for this period does not reflect the Veteran's symptoms met the criteria for a 40 percent disability rating under DCs 5237-5242 or DC 5243. Based on these facts, the Board finds the preponderance of the evidence is against the Veteran's claim for an increased rating for said period. Accordingly, for the period from September 30, May 4, 2015 to September 14, 2017, the Veteran's claim for an increased rating is denied. For the period from September 14, 2017 onward, the preponderance of the evidence is against the Veteran's claim for a disability rating in excess of 40 percent. The evidence of record is negative for ankylosis of the thoracolumbar spine or for 6 weeks or more of prescribed bed rest during a 12-month period. Based on these facts, the Board finds the preponderance of the evidence is against the Veteran's claim for an increased rating for said period. Accordingly, for the period from September 14, 2017, the Veteran's claim for an increased rating is denied. Separate evaluations have already been assigned for radiculopathy of both lower extremities, and these evaluations are not currently on appeal. No other associated objective neurological abnormalities are shown in this case. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Notably, the evidence and contentions of record do not suggest that the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has been raised during this appeal. Rather, the Veteran noted in August 2021 that he continues to work in his job as a superintendent. Rice v. Shinseki, 22 Vet. App. 447 (2009). See, e.g., August 2021 VA treatment record. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Hicks, 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.