Citation Nr: 21070225 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 14-40 365A DATE: November 23, 2021 ORDER From November 7, 2011 to July 12, 2021, an increased disability rating of 40 percent, but no higher, for a lumbar spine disability is granted. From July 12, 2021 and thereafter, an increased disability rating in excess of 40 percent for a lumbar spine disability is denied. FINDING OF FACT From November 7, 2011 to July 12, 2021, the Veteran's lumbar spine disability manifested in limitation of forward flexion at 30 degrees or less and inability to perform range of motion testing due to pain which is functionally equivalent to favorable ankylosis. From July 12, 2021 and thereafter, the preponderance of the evidence is against finding that the Veteran's lumbar spine disability manifested in unfavorable ankylosis of the entire thoracolumbar spine or spine. CONCLUSION OF LAW 1. From November 7, 2011 to July 12, 2021, the criteria for an increased disability rating of 40 percent disability, but no higher, for a lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 5237. 2. From July 12, 2021 and thereafter, the criteria for an increased rating in excess of 40 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from November 1974 and September 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision issued by the Department of Veterans Affairs VA Regional Office. In September 2018, the Veteran testified before the undersigned Veterans Law Judge during a Board video conference hearing. This matter was previously before the Board in December 2020 but was remanded to obtain a current VA examination to determine the current severity of his lumbar spine. In a July 2021 rating decision, the VA Regional Office staged the Veteran's lumbar spine disability and granted a 40 percent disability rating effective July 13, 2021. In a July 2021 supplemental statement of the case (SSOC), the VA Regional Office denied an increased rating in excess of 40 percent for his lumbar spine disability. This matter is again before the Board for adjudication. The Board notes that the Veteran's service connection claim for a right and left knee disability were also on appeal with this claim before the Board. In a July 2021 rating decision, the VA Regional Office granted service connection for a right and left knee disability. This represents a full grant of benefits sought on appeal and those issues are no longer on appeal before the Board. 1. Increased rating for a lumbar spine disability a) From November 7, 2011 to July 12, 2021 The Veteran seeks an increased rating for his lumbar spine disability. Specifically, he asserts that his lumbar spine disability has increased in severity resulting in constant back pain and inability to stand or walk for prolonged periods. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service-connected disability exhibits symptoms that would warrant different ratings). The Veteran's lumbar spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237. Prior to July 12, 2021, the Veteran was assigned a 10 percent disability rating. From July 12, 2021 and thereafter, he was assigned a 40 percent disability 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. Unfavorable ankylosis is defined as "a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching." Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id. 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. Here, the Board notes that the VA Regional Office assigned a 40 percent rating effective July 13, 2021. However, upon review of the evidence, the Board finds that the evidence supports a 40 percent disability rating throughout the period on appeal. In a June 2012 private treatment records, the Veteran reported throbbing and aching low back pain in January 2012, April 2012, and May 2012. While the private doctor noted he had limited range of motion, no objective range of motion measurements were recorded in the private treatment records. In an October 2012 VA examination, he reported having intermittent pain in his low back radiating to his right upper buttock. He also reported having pain caused by standing, walking, and bending and that the pain was alleviated by laying down and taking medication. He endorsed having flare-ups described as increased intensity and achiness during cold winters. During range of motion testing for his lumbar spine, his forward flexion was limited at 65 degrees with pain beginning at 65 degrees, and his combined range of motion was 200 degrees. However, during the repetitive-use testing assessment, the VA examiner noted he was unable to perform more than one repetition of forward flexion due to pain. The VA examiner also noted that he did have functional loss or impairment due to less movement than normal and pain om movement. During a November 2014 VA examination he denied having radicular symptoms or related neurological complaints. However, he stated that he could not bend over due to increased pain and rated his constant back pain as 4 out of 10. When aggravated, his pain was 8 out of 10. He stated that his back pain was aggravated by prolonged standing and sitting, excessive walking, bending and related movements. He also reported flare-ups of the back with pain noted as 8 out of 10. Upon range of motion testing, his forward flexion was limited at 30 degrees with pain beginning at 30 degrees, and his combined range of motion was 125 degrees. The Veteran was able to perform the repetitive use test assessment with no additional limitation in forward flexion, however, he did experience additional limitation in extension ending at five degrees. The combined range of motion of his lumbar spine, with consideration of the additional limitation in extension, was 115 degrees. With regards to whether repetitive use or reported flare-ups could significantly limit functional ability, the VA examiner stated that is not one with literature support. The VA examiner stated that based on the clinical presentation, examination findings, and his report, the VA examiner could not opine without resorting to mere speculation, a more definition loss of function due to flare-ups or repetitive-use over time except when flare-up occurs during examination. Following the Board's remand, another VA examination was obtained in July 2021 to determine the current severity of his lumbar spine. That VA examination indicated his lumbar spine disability had progressed or worsened. He reported pain on bending forward or with prolonged sitting, walking, or standing. The Veteran did not report any flare-ups during that VA examination. However, he did report having functional loss/impairment described as inability to bend forward without pain or pain with prolonged standing, sitting, or walking. During his initial range of motion testing, the VA examiner noted that he had almost no range of motion demonstrated. Active range of motion testing demonstrates that his forward flexion ended at 10 degrees and his extension ended at zero degrees. His combined range of motion was 80 degrees. The VA examiner noted that passive range of motion testing could not be performed because it was medically contraindicated due to severe pain or the risk of further injury. The VA examiner further noted pain was evident on active motion resulting in functional loss. Although he was unable to perform the observed repetitive use test due to pain, the VA examiner noted that pain resulted in functional loss during repetitive use over time with forward flexion additionally limited at nine degrees. However, his extension was limited at 5 degrees, which is slightly better than his extension during active range of motion testing. With consideration of the additional loss in range of motion estimated during repetitive use over time, his combined range of motion was 64 degrees. Based on the foregoing medical evidence, the Board finds that the Veteran's lumbar spine disability manifested in limitation of forward flexion at 30 degrees or less or favorable ankylosis of the entire thoracolumbar. While the Veteran's range of motion testing during the October 2012 VA examination showed his forward flexion was limited at 65 degrees, the VA examiner later noted that the Veteran was unable to perform forward flexion more than once due to pain. In this regard, the Board finds that the Veteran's limitation in performing forward flexion due to pain is indicates that his lumbar spine was fixed at zero degrees which is functionally comparable to favorable ankylosis. See Chavis v. McDonough, No. 18-2928, 2012 LEXIS 660 (Vet. App. April 16, 2021. The November 2014 and July 2021 VA examinations further reflects his forward flexion was limited at 30 degrees or less. These findings are reflective of the criteria contemplated under a 40 percent disability evaluation under the General Rating Formula for Disease and Injuries of the spine. As such, the Board finds that a 40 percent disability rating for his lumbar spine disability is warranted from November 7, 2011 to July 12, 2021. b) From July 12, 2021 and thereafter As to the question of whether he is entitled to a higher rating in excess of 40 percent, the Board finds that his private medical treatment records and July 2021 VA examination does not reflect that he has a diagnosis of unfavorable ankylosis of the entire thoracolumbar spine or entire spine. Specifically, there is no medical evidence demonstrating that his thoracolumbar spine is fixed in either extension or forward flexion. Moreover, there is no evidence that he exhibited any of the contemplated symptoms associated with unfavorable ankylosis contemplated under Note 5 of the General Rating Formula for Disease and Injuries of the Spine. As such, he is not entitled to a disability rating of 50 percent or 100 percent at any point throughout the period on appeal. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, repetitive use, pain during flare-ups, and pain during repetitive use over time. However, even considering his lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he is unable to bend over due to his back pain would not result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the Veteran does not have IVDS and the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Regarding radicular pain, the Board acknowledge that the Veteran reported having back pain which radiates to the right upper buttock during the October 2012 VA examination. However, during the October 2012 VA examination, there was no finding of radicular pain and his deep tendon reflexes and sensory examinations were normal. His straight leg raising test for both legs were also negative. These findings were also consistent with findings recorded during the November 2014 and July 2021 VA examination. As such, the Board finds that he is not entitled to a separate rating for any radicular symptoms related to his lumbar spine disability. Similarly, the lay and medical evidence does not reflect that he has reported any neurological impairments to include, but not limited to, bowel or bladder impairments associated with his lumbar spine disability. To that extent, he is also not entitled to a separate disability rating for neurological impairments. While the Board finds that the Veteran's lumbar spine disability meets the criteria of a 40 percent disability from November 7, 2011 to July 12, 2021, the preponderance of the evidence is against assigning a disability rating in excess of 40 percent for his lumbar spine disability for the period after July 11, 2021. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Xiong, 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.